Tiong v Minister for Community Services and Health
[1990] FCA 182
•04 MAY 1990
Re: DR SAUW JING TIONG and DR THUNG SING TIONG
And: MINISTER FOR COMMUNITY SERVICES and HEALTH
No. G77 of 1989
FED No. 182
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Spender(2) and Burchett(3) JJ.
CATCHWORDS
Administrative Law - Health Insurance Act - ss 79(1B), 105 - finding of excessive services - whether there must be personal fault on the part of the practitioner
Administrative Law - Natural justice - Medical Services Committee of Inquiry - Committee informed doctor that he would be questioned specifically about any doubtful medical services - whether denial of natural justice in failing to do so in some instances
Administrative Law - Medical Services Review Tribunal - s.119(1)(a) Health Insurance Act - function of the Tribunal on review.
Administrative Law - S.124A Health Insurance Act - function of Court on review
Health Insurance Act 1973 (Cth) - ss 3, 79(1B), 82, 104, 105, 106, 107A, 119, 124A -
HEARING
BRISBANE
#DATE 4:5:1990
Counsel for the Appellants: Mr W. Sofronoff QC and
Ms D. O'Reilly
Solicitors for the Appellants: Messrs Chambers McNab
Tully and Wilson
Counsel for the Respondent: Mr R.S. O'Regan QC and
Mrs D.A. MullinsSolicitors for the Respondent: Australian Government Solicitor
ORDER
1. The appeal of Dr T.S. Tiong be dismissed with costs.
2. The appeal of Dr S.J. Tiong be allowed and the orders of
the trial Judge be set aside and in lieu thereof it be ordered that the decision of the Review Tribunal as to Dr S.J. Tiong be set aside and the matter be remitted to a Review Tribunal for reconsideration according to law.
3. The respondent pay Dr S.J. Tiong's costs of the proceedings below and of the proceedings on appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a judgment of a single judge of this Court which dismissed an appeal under s.124A of the Health Insurance Act 1973 (Cth)("the HI Act") from a decision of a Medical Services Review Tribunal ("the Review Tribunal") established under s.108 of the HI Act. The Tribunal's decision had been given in the exercise of its function of reviewing a determination by the relevant Minister under s.106 of the HI Act. That determination had itself been made on the recommendation of a Medical Services Committee of Inquiry ("the Committee"), made under ss.104 and 105 of the HI Act.
Section 82 of the HI Act provides:-
"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."
The term "excessive services" is defined in s.79(1B) which provides:-
"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."
"Professional service" is defined in s.3(1) to mean, inter alia:-
"(a) a medical service to which an item relates, being a service that is rendered by or on behalf of a medical practitioner"
The question of the servicing of patients by the appellants, Dr T.S. Tiong ("Dr T.S."), an ear, nose and throat specialist, and Dr S.J. Tiong ("Dr S.J."), a radiologist, during 1985 and 1986, was referred by the Minister to a Committee.
After its hearing, the Committee was required by s.104 to make a report. Section 105(2) further provided:-
"(2) Where -
(a) a Committee has, in a report under section 104, expressed the opinion that a practitioner has rendered excessive services, and has identified those services; and
(b) a medicare benefit is payable, or has been paid, in respect of any of those services,
the Committee may, in the report, 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."
The Committee reported on 31 July 1987 that both Dr. T.S. and Dr S.J. had rendered excessive services. The Committee specified those services and gave reasons for its view. The Committee recommended that Dr T.S. be reprimanded and be required to repay the sum of $760.65 to the Commonwealth and that Dr S.J. be counselled and be required to repay the sum of $22,797 to the Commonwealth. Pursuant to s.106 of the HI Act, the Minister so determined on 16 November 1987.
Pursuant to s.107A(1) of the HI Act, the practitioners requested that the determinations be referred to a Review Tribunal for a review. The grounds set out in Dr T.S.'s request were as follows:-
"(a) That the Medical Services Committee of Inquiry ("the Inquiry") erred in failing to address, or properly address, the question whether Dr Thung Sing Tiong had rendered services which were not reasonably necessary for the adequate medical care of the patients concerned.
(b) That the Committee erred in failing to appreciate that whether the services rendered by Dr Thung Sing Tiong were reasonably necessary for the adequate medical care of the patients concerned is to be determined by reference to the professional standards and opinions of responsible medical practitioners and not by reference to the standards of 'medical necessity'.
(c) That the Committee erred in concluding on the evidence before it and applying a standard of medical necessity that the services rendered by Dr Thung Sing Tiong were not reasonably necessary for the adequate medical care of the patients concerned in that the evidence did not support such a conclusion."
Grounds (a), (b) and (d) in Dr S.J.'s request were similar. In her request, ground (c) read as follows:-
"(c) That the Committee erred in failing to conclude upon the evidence of Dr Sauw Jing Tiong and Dr William J.S. Earwaker (the latter being the Committee's own consultant) that the services rendered by Dr Sauw Jing Tiong were reasonably necessary for the adequate medical care of the patients concerned."
The Minister accordingly referred his determination to the Review Tribunal for review. In the conduct of its proceedings, the Review Tribunal was governed by s.119(1)(a) which provides:-
"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;"
On 25 August 1988, the Review Tribunal handed down its decision which affirmed the determinations, save to allow some of the professional services and thus to reduce the sum to be recovered from Dr T.S. from $760.65 to $328.25 and the sum to be recovered from Dr S.J. from $22,797 to $21,678.15.
A ground of challenge to this decision, in respect of both Dr T.S. and Dr S.J., was that, in respect of certain services of which an adverse finding was made, no specific question had been put to the relevant practitioner during the hearing by the Committee. I shall limit my discussion of this point to the services performed by Dr T.S.. The relevant ground of application to the trial Judge was:-
"(A) Whether the Tribunal erred in holding that the Medical Services Committee of Inquiry constituted under Section 80 of the Act is entitled in a hearing under Section 94(j) of the Act to disallow as excessive a service or services in respect of which:-
(i) No questions were asked by the Committee;"
To the same effect was the ground of appeal to this Court namely:-
"10. The primary judge erred in law in concluding that the recommendation of the Medical Services Committee of Inquiry that certain services rendered were excessive, not having asked any questions of the Appellants in respect of those services, did not amount to a denial of natural justice in respect of those services."
It appears that, early in the hearing by the Committee, there had been this exchange between the Chairman of the Committee and Dr T.S.:-
"CHAIRMAN: Just a bit more explanation. From the Committee's viewpoint we cannot pass or give an opinion on whether a service was necessary or unnecessary unless we ask you about it so I am afraid there is going to be a lot of repetition about it, but we have got to go through it to get your answer about that, do you get, is that clear again?
DR. T.S.: Yes.
CHAIRMAN: If we don't ask you about it well obviously we can't give an opinion and being the same type of service all the time there will be a lot of repetition with it, that's the way things are."
Thereafter, the practitioners were asked detailed questions concerning each of the patients elucidating the condition with which they presented, the care thought to be required and the professional services rendered. In a small number of cases, no question was directed specifically to a service which was subsequently found to be excessive, though usually questions relating to similar servicing were put with respect to other patients. The trial Judge found that there had been no breach by the Committee of the rules of natural justice and that what had happened was not unfair to the appellants, nor caused them to refrain from giving evidence which might have affected the Committee's conclusions.
It is unnecessary for me to discuss or to form a concluded view on that point. The application before the trial Judge did not seek to set aside the decisions of the Committee in respect of the three challenged items or to have the matter remitted to the Committee for its reconsideration. Moreover, as the proceedings before a Review Tribunal amount in effect to a reconsideration on the papers, taking into account any oral submissions made during the hearing, this is not a case where a breach of natural justice at an earlier stage necessarily invalidated the ultimate decision. In Ridge v. Baldwin (1964) AC 40 it was held that no decision of a watch committee was void, for breach of the rules of natural justice, and that, as that decision was a nullity, the subsequent disallowance by the Secretary of State of an appeal therefrom did not render it valid. See per Lord Reid at p 81, Lord Morris at p 126, Lord Hudson at p 136. But, in that case, the decision of the watch committee was the operative decision. In this present case, the decision of the Review Tribunal, not the decision of the Committee, is the operative decision. See s.119(1)(b), (2) of the HI Act.
Moreover, as was pointed out in McIntosh v. Minister for Health (1987) 17 FCR 463, the Review Tribunal had no power to set aside the whole or a part of the decision of the Committee or to remit the matter afresh for reconsideration requiring the procedure to start again. The Tribunal's powers and procedures were limited to those set out in s.119 of the HI Act. The trial Judge correctly expressed the function of the Review Tribunal as follows:-
"The central task of the Tribunal, as I read the Act, is to determine whether, on the evidence before the Committee, its conclusions are factually correct. But in performing that task, it may take into account the opportunity or lack of opportunity for explanation of his or her actions accorded to the doctor concerned. If the Tribunal was satisfied, as to a particular service, that the doctor whose conduct was in question had had no reasonable opportunity to explain his or her case, then in my opinion it would have power to vary the Minister's determination accordingly."
See McIntosh v. Minister for Health at pp 466-7.
Before the Review Tribunal, Dr T.S., who was legally represented, was entitled to put any relevant submissions he wished to put with respect to the challenged services. The point was raised and relied upon before the Review Tribunal that, with respect to these items, no specific question had been put to the practitioners by the Committee. In respect of one item, that relating to Patient No.70, the Review Tribunal thought it not safe to make a finding of excessive servicing on the material which was before it. The Tribunal acted accordingly. In the other three cases, the Tribunal thought it safe to make a finding of excessive servicing. In relation to Patient 54, the Review Tribunal said:-
"In the opinion of the Tribunal to have performed an audiogram in the presence of a temporarily occluded ear was an excessive service unnecessary for the care of the patient."
An audiogram for Patient 82 was held to be excessive for the same reason. The third item was for the procedure of direct laryngoscopy undertaken with respect to Patient 48. The Tribunal said:-
"... as this procedure of oesophagoscopy must include the procedure of direct visualisation of the larynx. The addition of this procedure, Item 5520, for the purpose of charging an additional fee is an excessive service."
The first two items, audiograms, concerned a subject which was well ventilated in the proceedings before the Committee, that is to say, the taking of an audiogram when the patient's hearing was occluded. The third matter was an item which the Review Tribunal thought was simply a double charge for the direct visualisation of the larynx. In respect of this patient, it may be noted that the Committee, which had not expressed a reason for disallowing this particular item, had already stated that:-
"the C.A.T. scan and the larynx operation rendered on 18 April, 1986, together with the palato-pharyngeal studies and the x-ray of the chest rendered on 21st April, 1986 were not reasonably necessary for the adequate medical care of this patient."
In this appeal, counsel for the practitioners submitted that there had been an attempt to amend the grounds of review and to lead further evidence before the Review Tribunal and that the Review Tribunal had refused the application relying upon Minister for Health v. Thomson (1985) 60 ALR 701 and McIntosh v. Minister for Health, cited above. However, the actual amendments sought and the evidence sought to be led before the Review Tribunal did not relate to the items I am now discussing. When the practitioners' legal representative addressed the Tribunal with respect to these items, the case was put on the basis that no specific question about the items had been asked by the Committee. The transcript before the Tribunal records that counsel for the practitioners said:-
"I have become aware of Thomson's case to the effect that fresh evidence cannot be addressed before the Tribunal and I've already stated that Dr T.S. Tiong no longer seeks to reconvene the Committee for that purpose."
In effect, therefore, counsel opted to or was content to proceed on the evidence that was before the Review Tribunal.
The Review Tribunal was bound by the Statute to make a decision about these items, for the practitioners had requested a review and the Minister had referred the matter to the Review Tribunal for review. On the material before it, the Review Tribunal concluded that the subject items were instances of excessive servicing. The Review Tribunal complied with the procedural requirements to which it was subject. I do not see any basis for holding that its decisions were flawed by procedural unfairness on its part, even had that ground been relied upon, which it was not. Nor do I see any basis for holding that its decisions were unreasonable or otherwise in error. The Tribunal had evidence before it and its conclusions were open on that evidence. The Tribunal's findings were within the ambit of its expertise. Further, as I have mentioned, the Tribunal's decisions were not invalidated by procedural unfairness at the Committee stage, for the trial Judge was not asked to and did not set aside the decisions of the Committee on that or any other ground. Had the decisions of the Committee in respect of these items been set aside, the order would have had a consequential effect upon the decisions of the Review Tribunal. But that is not how the matter proceeded. The Review Tribunal made its findings on the material before it, as it was bound to do.
I would not uphold this ground of appeal.
No other ground was relied upon insofar as Dr T.S. is concerned. I turn now to other submissions put in relation to Dr S.J..
All the services performed by Dr S.J., the radiologist, which were found to be excessive, had been performed at the request of Dr. T.S., the ear, nose and throat specialist. The Review Tribunal noted the following relationship between the two practitioners:-
"The relationship between the two practitioners concerned was not clearly defined. There was evidence that they had their respective rooms in the same building and that each had his or her own staff and shared the services of one employee and a common reception area. They kept separate accounts and there was nothing to show they shared professional or living expenses or had any joint bank account. There is an indication at the beginning of the hearing that the practitioners were husband and wife."
This was not a finding of a common action or of a joint purpose.
The Committee had dealt with the issue in these terms:-
"3.3 This Reference has presented the Committee with a unique concern. 3.3.1 The Committee has no doubt that Dr T.S. Tiong ordered excessive radiological services and notes that Dr S.J. Tiong rendered only the radiological services she had been asked to render. 3.3.2 Under oath, Dr S.J. Tiong not only confirmed this approach but also admitted that if she thought it necessary she would question the appropriatness (sic) of and the need for the requested radiological services. Indeed she had done so. Dr Earwaker, the Committee's Consultant confirmed that only if a procedure presented a real danger to a patient would he not perform a radiological test if the requesting practitioner remained insistent after discussion.
3.3.3 No provision exists in the Health Insurance Act 1973 to make a finding that the ordering or initiating of a radiological test constitutes excessive servicing and in fact your Instrument of Referral refers only to whether Dr T.S. or Dr S.J. Tiong rendered excessive services. 3.3.4 Having considered all the evidence and the circumstances, the Committee has taken the view that 'to render' means 'to perform' or 'to do'. There is no doubt that Dr S.J. Tiong performed the radiological services identified in your Reference, and the Committee has therefore recommended accordingly. 3.4 It is noted that:
(i) during the Reference period, Dr S.J. Tiong was the only Radiologist in Mackay with the facilities/equipment able to perform a C.A.T. scan and
(ii) in evidence, the practitioners stated that many patients resided some distance from Mackay and that this influenced the rendering of many of the services on the same day. The Committee believes that neither of these factors justifies the aggressive investigatory and management style adopted by the practitioners in many of the cases."
Although that last paragraph of the Committee's reasons could imply a communality of interest as between Dr T.S. and Dr S.J. and also a joint approach to servicing, the reasons, read as a whole, proceeded on the basis that the services requested by Dr T.S. were unnecessary, but that Dr S.J. was responsible for them simply because she had performed the service.
The Review Tribunal adopted a like approach and said:-
"In the present case the services under consideration were radiological services and were not rendered by an employee. In those circumstances the liability to repay benefits in respect of the excessive services attaches to the provider that is the practitioner rendering the service and as the history of the legislation shows this is no oversight but must be presumed to be the intention of the legislature.
...
The Committee was well aware that Dr S.J. had not initiated the services found to be excessive but nevertheless chose to recommend recovery from the practitioner and the Minister in his discretion accepted that recommendation.
The position is that a substantial amount of excessive servicing has occurred and it is reasonable that the benefit paid for it should be recovered. The Minister has decided that the statutory right of recovery whih undoubtedly exists should be exercised leaving it to the two practitioners concerned to work out between themselves the ultimate source of the refund.
We think this solution is a reasonable one and that the discretion of the Minister was properly exercised."
However, the issue before both the Committee and the Review Tribunal was whether professional services performed by Dr S.J. were excessive, that is to say, not reasonably necessary for the adequate medical care of the patient concerned. Medical services are not excessive for the purposes of the HI Act unless they constitute unnecessary servicing by the medical practitioner at the expense of the health system. The terms of s.105 of the HI Act, which refer to a reprimand, to counselling and to a decision that the practitioner repay certain fees received, necessarily imply a disciplinary proceeding. They require personal fault on the part of the practitioner. This issue must be examined having regard to the facts which were known or available to the practitioner and must take into account the practitioner's perception of the patient's condition and the care required. Regard should also be had to acceptable practice in the medical profession.
The words 'reasonably necessary' in the definition of "excessive services" refer to services which are reasonably appropriate. See per Higgins J. in The Commonwealth and the Postmaster General v. The Progress Advertising and Press Agency Co Pty Ltd (1910) 10 CLR 457 at p 469 and per Latham C.J., Rich, Dixon, McTiernan and Webb JJ. in Ronpibon Tin (N.L.) and Tongkah Compound (N.L.) v. Federal Commissioner of Taxation (1949) 78 CLR 47 at p 56. Thus, if a practitioner rendered services which, in his view, were not reasonably appropriate for the adequate medical care of the patient, but did so, eg. for the purpose of enhancing his own income, the services rendered would not be reasonably necessary for the care of the patient. On the other hand, if the practitioner performed a service which, in his view, was appropriate for the adequate care of the patient concerned, his belief would be relevant as to whether the service was not reasonably necessary but it would not determine the matter. The Committee, the Minister and the Review Tribunal each have the function of making up its or his own mind on the issue as to whether the service was reasonably necessary.
Part IIA of the HI Act, which concerns itself with pathology services, deals with this type of problem differently. Section 23DM enables the Minister to take proceedings against a practitioner who has initiated excessive pathology services. No such provision has been made with respect to radiological service.
One ground of appeal, which reflected a ground before the trial Judge, was that:-
"The primary judge erred in failing to set aside the determination of the Respondent in relation to the First Appellant having regard to the evidence of Dr. W.J.S. Earwaker and the First Appellant and the findings of the Medical Services Committee of Inquiry that the First Appellant had rendered only those services which she had been asked to render."
This ground could not be upheld as, in his evidence, Dr W.J.S. Earwaker did not suggest that a radiologist should not exercise his own judgment as to whether or not a procedure requested by another practitioner should be performed.
Nevertheless, it would have been relevant for the Review Tribunal to consider the following evidence of Dr Earwaker, who was a radiologist called to give evidence as a consultant to the Committee,:-
"Dr Powell: This is in much more general terms Dr Earwaker. You have mentioned once or twice and I think in one particular case you talked about instructions from the Specialist concerned. How much do you feel that you retain the freedom to decline to do this, that or the other investigation or reasons that may be to do with your assess- ment of the appropriateness of it or something like that. Dr Earwaker: This is in general terms. Dr Powell: In general terms yes. Dr Earwaker: Or in relation to any specific E.N.T. problem or .. Dr Powell: Lets say in general tems but keep it in the E.N.T. area. Dr Earwaker: Well if I feel that what has been required of me or asked of me on a referral form or a letter is not in the tems of what I would practice I would ring the Specialist concerned or the referring Doctor concerned and discuss the matter with him. I would discuss the matter with him in terms of what I felt was appropriate, what information I can provide him with to help him in sorting out his clinical problem and whether I felt, you know, adding something else on was going to provide him with any help and what it was going to do to the patient, and why I say that is I mean for example putting air in somebody's back and doing a posterior fossa cisternogram got a severe morbidity associated with it.. Dr Powell: Would I be right in assuming that the more complex investigations you would limit the range of people who could order them on. Dr Earwaker: Yes, that's correct. Dr Hinckley: If the practitioner, in spite of your phone call and advice, requested you to proceed with an investigation and you considered it inappropriate, would you still proceed? Dr Earwaker: I think in some cases, to be honest, yes that we have proceeded to do it, we've been requested to do it. Where there's a risk involved to the patient I would advise the patient of the risks involved, and that's particularly, could I quote some examples for you. Patients have been referred to us asking for examinations in which intravenous contrasts we feel is mandatory. The patients, the Doctors have still asked us to proceed with that even after consultation and I've then advised the patient, I mean we always advise the patient of an intravenous contrast, but I would advise the patient particularly. So where I felt that there was a risk to the patient, I certainly would advise the patient. Dr Hinckley: Have you ever refused to so proceed because you thought something was inappropriate? Dr Earwaker: Certainly refused to proceed with regard to investigations in which patient risk was involved."
The Review Tribunal, like the Committee, did not weigh up this evidence or the evidence of Dr S.J. that, from time to time, she queried the procedures ordered by Dr T.S..
The Review Tribunal therefore approached the matter on a wrong basis, for it found excessive servicing by Dr S.J. on the basis that Dr T.S. had ordered services which were, having regard to the information before him, excessive. That was not the question. The issue was whether Dr S.J. had provided excessive services. A finding on this point could not be made without a finding of fault on Dr S.J.'s part. The Review Tribunal did not address this issue.
The trial Judge considered that the Review Tribunal, as well as the Committee, did, indeed, find personal fault on the part of Dr S.J.. His Honour said:-
"... it seems plain that the Committee took a dim view of the extent to which CAT scans were used, as did the Tribunal."
However, after carefully considering the reasons of the Review Tribunal, I have concluded that the decision of the Tribunal was not based on fault on the part of Dr S.J., but simply on the view that the services requested by Dr T.S. were excessive. The decision of the Review Tribunal with respect to Dr S.J. was therefore in error.
Before the Review Tribunal, the practitioners sought to amend the grounds of review to allege that the Committee had wrongly exercised a discretion to decide that Dr S.J. repay the benefits paid for the excessive services ordered by Dr T.S.. The ground of review sought to be added was wrong in law; but I am not now concerned with that point. The Review Tribunal referred to s.119(1)(a), set out above, and refused to permit amendment, relying upon Minister for Health v. Thomson, cited above and McIntosh v. Minister for Health, cited above. The trial Judge considered the view of the Review Tribunal to be correct in this respect. In the appeal, counsel for the applicants submitted that the Review Tribunal had been in error and that s.119(1)(a) of the HI Act was in part directory, not mandatory. Counsel relied upon Howard v. Secretary of State for the Environment (1955) 1 QB 235 and Chelmsford Rural District Council v. Powell (1963) 1 WLR 123.
It is unnecessary to discuss at length the nature of mandatory and directory provisions and the distinction between them. These matters were recently considered in Formosa and nor v. Secretary, Department of Social Security (1988) 81 ALR 687. Section 119(1)(a) is directed not to applicants but to the Review Tribunal and specifies how the Review Tribunal is to go about its task. The provision binds the Tribunal. The Review Tribunal must review the determination in accordance with the request for review and, in doing so, is to consider the matters to which the determination relates having regard to (i) the grounds set out in the request, (ii) the documents forwarded with the request and (iii) any addresses made to the Tribunal during the proceedings on the review. There is no ambiguity in this provision. An amendment to the grounds of review specified in the request is outside the function of the Tribunal. It is bound to determine the matter in accordance with the request for review and having regard to the grounds set out therein.
Of course, grounds of review are not to be read "technically, narrowly or with rigidity", per Dixon J. in AL Campbell and Co Pty Ltd v. Federal Commissioner of Taxation (1951) 82 CLR 452 at p 461. Thus, the point discussed above, that the Committee had misinterpreted the HI Act and misinterpreted the term "excessive services", may be inferred from the practitioners' grounds for review, notwithstanding that the grounds did not in express terms raise the point. The Review Tribunal and the trial Judge so read the grounds.
Lastly, I should mention that both counsel submitted that the facts of the case were so clear that the Court should find in their favour without remitting the matter to the Review Tribunal. However, the facts are for the Review Tribunal. The Court is concerned only with questions of law. See s.124A of the HI Act. Once the Court has dealt with the question of law, the general issue of Dr S.J.'s servicing must be remitted to a Review Tribunal for its decision.
The appeal of Dr T.S. should therefore be dismissed with costs. The appeal of Dr S.J. should be allowed and the orders of the trial Judge should be set aside and, in lieu thereof, it should be ordered that the decision of the Review Tribunal as to Dr S.J. be set aside and the matter be remitted to a Review Tribunal for reconsideration according to law. The respondent should pay Dr S.J.'s costs of the proceedings below and of the proceedings on appeal.
JUDGE2
I have had the advantage of reading in draft form the reasons for judgment of Davies J. where the facts concerning the appeals of Dr. S. J. Tiong and Dr. T. S. Tiong are set out.
The effect of s.3(1) and s. 79(1B) of the Health Insurance Act 1973 ('the Act') is that a medical practitioner renders excessive services where those services (being services in respect of which medicare benefit has become or may become payable) are not reasonably necessary for the adequate medical care of the patient concerned. Services are reasonably necessary if they are reasonably appropriate in the circumstances.
Section 105(2) of the Act permits a Medical Services Committee of Inquiry, on expressing an opinion that a practitioner has rendered excessive services and after identifying those services in respect of which a medicare benefit is payable or has been paid, to make one or more recommendations that the practitioner be reprimanded, be counselled, that the medicare benefit payable cease to be payable or, where the medicare benefit has been paid to the practitioner or has been paid or is payable to another person, the amount of the medicare benefit or a specified part of that amount be payable by the practitioner to the Commonwealth. It seems to me inherent in this provision that personal fault on the part of the practitioner is necessary.
The scheme of the Act is not to make a practitioner vicariously liable in respect of services which have been ordered by another medical practitioner, which services are, on the material available to the ordering practitioner, not reasonably necessary for the adequate medical care of the patient. Sections 104 and 105 and the determinations by the Minister under s. 106 are all directed at the practitioner who rendered excessive services and not at a practitioner who ordered or requested those services to be provided. Whether a practitioner, in rendering a specific service, has rendered excessive service is to be judged from the viewpoint of the practitioner rendering the service.
The learned primary judge held that the Review Tribunal, as well as the Committee, considered that Dr. S. J. Tiong's conduct was not reasonable in the circumstances. His Honour said:
"I am of the view that diagnostic services may be 'reasonably necessary' because the doctor providing them reasonably acts upon a request to do so, there being nothing in the circumstances to suggest that the request is unreasonably made. The situation just described is, however, plainly far from the view which the Committee took of the work of Dr S.J. in this case. I cannot read its reasons as embodying a view that Dr S.J. performed the excessive CAT scans and X-rays innocently (so to speak) and reasonably. Many of the CAT scans, for example, were performed on people suffering illnesses likely to be of short duration, within 24 hours of the initial consultation by Dr T.S. It was argued by Mr Keane Q.C., senior counsel for the appellant, that there was no suggestion in the Committee's report that the services rendered by the radiologist (Dr S.J.) were 'otherwise than in accordance with the appropriate professional standards'. That is true in one sense, but it seems plain that the Committee took a dim view of the extent to which CAT scans were used, as did the Tribunal."
I do not agree that the Tribunal took a pejorative view of the conduct of Dr. S. J. Tiong. In my respectful opinion, the reasoning of the Tribunal was that, if from the point of view of the practitioner requesting or ordering the services the services were not reasonably necessary, then the medical practitioner rendering those services on that request or order would be rendering an excessive service. The Committee said:
"The Committee has no doubt that Dr T.S. Tiong ordered excessive radiological services and notes that Dr S.J. Tiong rendered only the radiological services she had been asked to render. ...
Under oath, Dr S.J. Tiong not only confirmed this approach but also admitted that if she thought it necessary she would question the appropriatness
(sic) of and the need for the requested radiological services. Indeed she had done so. ...
No provision exists in the Health Insurance Act 1973 to make a finding that the ordering or initiating of a radiological test constitutes excessive servicing and in fact your Instrument of Referral refers only to whether Dr T.S. or Dr. S.J. Tiong rendered excessive services. Having considered all the evidence and the circumstances, the Committee has taken the view that 'to render' means 'to perform' or 'to do'. There is no doubt that Dr S.J. Tiong performed the radiological services identified in your Reference, and the Committee has therefore recommended accordingly."
I accept that there is a contrary tendency in the reference by the Committee to "the aggressive investigatory and management style adopted by the practitioners in many of the cases" (my emphasis).
Save for this comment, there is no exploration of whether Dr. S. J. Tiong and Dr. T. S. Tiong acted in concert in the rendering of the services in question. The Tribunal also did not address the question of whether there was personal fault in Dr. S.J. Tiong's conduct in the circumstances of her provision of those services in question. It said in its reasons:
"The Committee was well aware that Dr S.J. had not initiated the services found to be excessive but nevertheless chose to recommend recovery from the practitioner and the Minister in his discretion accepted that recommendation. The position is that a substantial amount of excessive servicing has occurred and it is reasonable that the benefit paid for it should be recovered. The Minister has decided that the statutory right of recovery which undoubtedly exists should be exercised leaving it to the two practitioners concerned to work out between themselves the ultimate source of the refund. We think this solution is a reasonable one and that the discretion of the Minister was properly exercised."
In my opinion, the Review Tribunal failed to apply the true test on the issue of whether the service was reasonably necessary, which is whether, viewed from the position of the practitioner rendering the service, the service was reasonably necessary for the adequate medical care of the patient.
That is a question which is for the Review Tribunal to determine. The evidence of Dr. Earwaker and the evidence of Dr. S. J. Tiong herself would of course be relevant to that inquiry as would the evidence directed to the nature of any concert between Dr. S.J. Tiong and Dr. T.S. Tiong.
In my opinion, the appeal of Dr. S. J. Tiong should be allowed.
As to the appeal of Dr. T.S. Tiong, in my opinion, his appeal should be dismissed. I agree with the reasons of Davies J., and in particular with his analysis of the function of the Review Tribunal and with his reasons for concluding that procedural unfairness did not attend the Tribunal's finding that the audiograms performed on patients 54 and 82 when their hearing was occluded were excessive services, nor was the similar finding concerning the direct laryngoscopy on patient 48. In my opinion, no reviewable error appears in connection with the conclusion by the Tribunal that these services, amounting in all to $80.90 of benefit, were excessive.
I agree with the orders proposed by Davies J.
JUDGE3
The facts of these appeals, which were heard together, are set out in the reasons of Davies J. It is unnecessary for me to repeat them.
I agree with Davies J. that the conclusion of the Review Tribunal in respect of Dr S.J. Tiong was vitiated by an error of law. That conclusion embraced the proposition that a radiologist, acting upon an apparently normal request for radiology services on behalf of a patient, would be guilty of providing "excessive services" within the meaning of s.79(1B) of the Health Insurance Act 1973 if the ear nose and throat specialist, who requested the provision of the service to enable him to diagnose and treat the patient's condition, lacked sufficient justification for making his request. I cannot accept that the legislature intended to heap upon an entirely innocent specialist the onerous consequences of a finding of over-servicing upon any such basis.
The criterion contained in s.79(1B) is whether a professional service is "not reasonably necessary for the adequate medical or dental care of the patient concerned." The necessity for the provision of a service must be considered from the view-point of the provider of the service. The subsection is concerned with his actions, and it would be incongruous to evaluate them from the view-point of someone differently placed and possessed of different information. What is necessary to be done by a consultant, asked to perform a test or furnish an opinion on a patient currently under treatment directed by someone else, may be quite different from what would be necessary if the consultant were the first doctor seen by a previously untreated patient. For a specialist requested to carry out a test, one thing may be necessary - to carry out that test. It will be reasonably necessary to do so for the adequate medical care of the patient, so far as he is concerned, if the request comes from an appropriate practitioner and is not on its face an inappropriate request. In a profession divided into specialties, any other approach would disrupt the activities which are intended to work together to effect diagnosis and cure.
As a consequence of the Review Tribunal's erroneous decision against Dr S.J. Tiong, the determination that she should be required to repay the sum of $22,797.00 to the Commonwealth was affirmed, subject to a variation of the amount to $21,678.15. At the hearing of the appeal, argument was directed to the question whether it was open to the appellant Dr S.J. Tiong to mount a separate attack upon the exercise of discretion involved in the requirement to repay that sum, having regard to the formulation of the grounds set out in the request for review and to the terms of s.119(1)(a). In my opinion, this question does not arise, since the whole decision is bad, and therefore the requirement to repay the amount referred to in it cannot stand. No independent attack upon that requirement needs to be mounted. For this reason, it is unnecessary to examine the correctness of the decision in McIntosh v. Minister for Health (1987) 17 FCR 463 where it was held that the grounds of review could not be amended after the expiry of the time limited by s.114. But it would not be consonant with that decision to construe grounds contained in a request restrictively; for there is nothing in the terms of the Act to suggest that a full right of review was not intended.
The appeal by Dr T.S. Tiong raises quite a different issue. It concerns only a small number of services provided by him, in respect of which the evidence before the Review Tribunal showed that he had never been called upon to make explanation. It is true that he had been asked general questions about the treatment given to the patients concerned, and about the conditions for which he had treated them. The problem arose from the manner in which the original committee hearing had been conducted. At the commencement of that hearing, the chairman expressly told Dr T.S. Tiong:
"From the Committee's view-point we cannot pass or give an opinion on whether a service was necessary or unnecessary unless we ask you about it ... . ... If we don't ask you about it well obviously we can't give an opinion, and being the same type of service all the time there will be a lot of repetition with it, that's the way things are."
After such an introduction to the matter, it is obvious that Dr T.S. Tiong may have considered that he need not justify any particular service about which no question was asked of him by the committee. Since it was not open to him to put any further evidence before the Review Tribunal (see Minister for Health v. Thomson (1985) 8 FCR 213), in my opinion the Review Tribunal was required to face up to this problem. It was not a matter of asking whether Dr T.S. Tiong had been denied natural justice by the committee. The Review Tribunal was not a Court exercising a supervisory jurisdiction over the committee; its function was to review the actual decision on the merits, though upon evidence restricted to that which had been before the committee. The relevant ground set out in the request therefore correctly directed itself to the issue when it went straight to "the question whether (Dr T.S. Tiong) had rendered services which were not reasonably necessary for the adequate medical care of the patients concerned." The issue was whether, upon that material which was before the Review Tribunal, it could lawfully be found that the doctor had rendered such unnecessary services. There was not then any question of denial of natural justice by the committee; but of the evidence upon which the Tribunal was entitled to act. The Tribunal had to observe the requirement that Dr T.S. Tiong "must be afforded an adequate opportunity of being heard" (The Commissioner of Police v. Tanos (1958) 98 CLR 383 at 395). I agree, as has been repeatedly held, that the adequacy of an opportunity to be heard will vary from case to case, and the principle is really the opposite of the specification of some inflexible procedure. See Busby v. Chief Manager, Human Resources Department, ATC (1988) 83 ALR 67 at 72. But where, on the face of it, a Tribunal has made a determination against a person in respect of particular matters he was expressly told would not be raised against him, the decision can only be justified by a finding that, on the facts, an adequate opportunity to be heard was nevertheless somehow provided. The difficulty in the present case is that the Tribunal did not examine this question, let alone make any such finding. The finding was made by the learned trial Judge upon appeal from the Tribunal, and in my opinion it was not open to him to make such a finding since, by virtue of s.124A, the appeal to him was "on a question of law only" (see Newcombe v. Newcombe (1934) 34 SR (NSW) 446 at 449 where Jordan C.J. stated clearly that a court to which there is no appeal on the facts cannot supplement what has been found below by inferences of its own).
The Tribunal's reasons show no perception of the problem at all. They begin by discussing the desirability of the chairman's ruling, not its effect; and conclude that his statement "refers to a general and desirable rule but not to a condition precedent to the exercise of the Committee's function." The Tribunal adds that there will be unspecified cases (it does not find that these actually included any of the cases in dispute) "where questions raised by the Committee when considering services rendered to other patients or on other occasions should alert the practitioner to the possibility that the Committee may think that a particular service under review was excessive." The Tribunal does not attempt to show that in any particular case Dr T.S. Tiong would have been alerted, by discussion related to a different patient and a different occasion, to the fact that an unspecified service must now be regarded as under examination.
If this were a matter for the court to decide, it would be difficult to avoid the reflection that the most natural result of the situation suggested would have been a specific question from Dr T.S. Tiong as to whether the committee had changed its mind about its procedure. No such question was ever raised. What is plain is that Dr Tiong was told in clear language that the only services to be examined would be those about which he would be asked questions; that the Tribunal subsequently held against him in respect of services about which he had been asked no question; and that the Tribunal justified this course, not by suggesting that Dr Tiong had not in each of these particular instances been denied an opportunity of making his answer, but by criticizing the appropriateness of the chairman's ruling. In my opinion, the Tribunal was, as a matter of law, precluded from examining services in respect of which the doctor had had no opportunity to make his answer. This conclusion is based, not only upon the principle of natural justice as applied to the functioning of the Tribunal itself upon its review of the committee's decision, but (as is generally the situation in cases where that principle has been discussed) upon the true interpretation of the Tribunal's statutory charter under s.119 - which places on it the duty to consider whether a determination against a practitioner should properly be made upon the particular material submitted to it. If the contention was that, in all the circumstances and despite the chairman's ruling, the doctor had had an opportunity to make an answer, an express finding to that effect was required, and the question would then have arisen, as to each specified service, whether there was any evidence upon which this finding could have been made. A generalization that there will be such cases was plainly insufficient.
I have already said that the point arose upon the grounds of review which were before the Tribunal. The Tribunal's reasons expressly record that counsel for Dr Tiong relied upon the statement of the chairman for the contention that "where no question regarding a service was put to the practitioner the benefit of that service should not have been disallowed". The notice of appeal to the learned trial judge also raised the issue, which he dealt with by examining for himself the course of the hearing before the committee, as revealed by the transcript, and finding as a fact that he was
"by no means satisfied that the course taken by the Committee, while it did not accord precisely with what the Chairman said should happen, was unfair to the appellants or caused them to refrain from giving evidence likely to have affected the committee's conclusions."
This way of dealing with the matter transferred the fact finding function from the Tribunal to the Court, contrary to s.124A, and unjustifiably placed upon the appellant an onus which he would not have borne in the Tribunal: Minister for Health v. Thomson (supra); McDonald v. Director-General of Social Security (1984) 1 FCR 354; Australian Broadcasting Tribunal v. Bond Corporation Holdings Ltd (1989) 86 ALR 424 at 432. In any case, the passage quoted appears to reject Dr Tiong's application on the footing that he could not show a denial to him of natural justice was actually "likely to have affected" the result. Natural justice stands on a higher plane than that, for reasons which were made clear in Kioa v. West (1985) 159 CLR 550 at 603 and 633, and in the other cases cited in Colpitts v. Australian Telecommunications Commission (1986) 9 FCR 52 at 71.
I would allow both appeals with costs; order that each decision of the Review Tribunal the subject of appeal (there were decisions in respect of Dr T.S. Tiong which were not challenged) be set aside; and remit each matter to a Review Tribunal for reconsideration according to law. I would also order that the respondent pay the costs of the proceedings before the trial judge.
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