Wong and Australian Community Pharmacy Authority
[2017] AATA 646
•9 May 2017
Wong and Australian Community Pharmacy Authority [2017] AATA 646 (9 May 2017)
Division:GENERAL DIVISION
File Number: 2016/0899
Re:Shui Su Wong
APPLICANT
AndAustralian Community Pharmacy Authority
RESPONDENT
AndVincent Consentino
JOINED PARTY
DECISION
Tribunal:Deputy President Dr C Kendall
Ms LM Gallagher, MemberDate:9 May 2017
Place:Perth
The recommendation of the Australian Community Pharmacy Authority made on 22 January 2016 (that Mr Wong's application made on 9 November 2015 to supply pharmaceutical benefits from particular premises not be approved) is affirmed.
...........[Sgd].............................................................
Deputy President Dr C Kendall
CATCHWORDS
PHARMACIST – application for approval to supply pharmaceutical benefits at particular premises – review sought in Administrative Appeals Tribunal of recommendation by Australian Community Pharmacy Authority not to approve application – requirement for at least 4 full-time or equivalent prescribing medical practitioners practising not satisfied – decision affirmed
LEGISLATION
National Health Act 1953 (Cth) ss 90, 99K, 99L, 105AD
National Health (Australian Community Pharmacy Authority Rules) Determination 2011
ss 4, 5, 9, 10, 11
Schedule 1 Part 2 – Item 132, Item 136
Schedule 2 – Item 211, Item 212
CASES
Issa and Australian Community Pharmacy Authority [2012] AATA 374
Ranallo v ACPA (2008) 108 ALD 57
St Mary’s Health and Community Services Pty Ltd v Australian Community Pharmacy Authority [2016] AATA 673
SECONDARY MATERIALS
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 –Explanatory Statement
REASONS FOR DECISION
Deputy President Dr C Kendall
9 May 2017
INTRODUCTION
On 12 May 2014, Luigi Sgambelluri and Maria Tindara Sgambelluri (the “Lessor”), Uomo Nominees Pty Ltd (as Trustee of the Wong Family Trust) (the “Lessee”) and Mr Shui Su Wong (as Guarantor) executed an Agreement to Lease at premises located at 53 Uduc Road, Harvey, Western Australia (the “Proposed Premises”).
The Agreement to Lease was subject to, among other things, Uomo Nominees obtaining the necessary approvals to supply pharmaceutical benefits from the Proposed Premises.
On 13 May 2014, a sub-lease of the Proposed Premises was agreed to between the Lessee and Mr Wong.
On 9 July 2014, the Lessor gave its consent to Mr Wong taking a sublease of the Proposed Premises if and when the Australian Community Pharmacy Authority (the “Authority”) approved Mr Wong’s application to establish a pharmacy at the Proposed Premises, subject to the provisions of the Agreement to Lease.
On 9 November 2015, Mr Wong lodged an application under section 90 of the National Health Act 1953 (Cth) (the “Act”) for approval to supply pharmaceutical benefits from the Proposed Premises. In his application for approval, Mr Wong stated that he sought approval in accordance with the provisions of Item 132, ‘New additional pharmacy (at least 10km)’ of Part 2 of Schedule 1 of the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Determination No. PB 65 of 2011) (Cth) (“the Pharmacy Rules”).
In accordance with the procedures set out in the Act, on 12 November 2015 the application was referred to the Authority for assessment and recommendation to the delegate of the Secretary of the Department of Health as to whether Mr Wong’s application to supply pharmaceutical benefits should be approved.
On 17 November 2015, the Authority invited two pharmacy operators from surrounding areas to provide comments in relation to Mr Wong’s application.
At its meeting on 22 January 2016, the Authority recommended that the application for the Proposed Premises not be approved (T2 at 5).
The signed extract of the minutes from this meeting highlight that the specific basis for the Authority’s recommendation was that it was not satisfied that the application met the requirements of the National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Determination No. PB 65 of 2011) (Cth) (“the Pharmacy Rules”).
The Authority provided Mr Wong with a Statement of Reasons on 7 March 2016 (T2). Relevantly, the Authority found that it was not satisfied that on the day Mr Wong’s application was made and on the day his application was considered by the Authority, located in the same town as the proposes premises, there were one or two supermarkets which occupied a combined total gross leasable space of at least 2 500 m2 as per Item 132, 2(b) of Part 2 of Schedule 1 of the Pharmacy Rules.
The Secretary for the Department of Health (the ultimate decision maker with respect to Mr Wong’s application) is yet to act on the Authority’s recommendation.
Mr Wong has applied to this Tribunal to review the Authority’s recommendation. Mr Consentino, the proprietor of an existing pharmacy business in Harvey, has been made a party to the application as his interests are affected by the Authority’s recommendation that is under review.
ISSUES FOR DETERMINATION
In order for Mr Wong’s application to receive a favourable recommendation, all of the requirements in Items 132, 1 and 132, 2 (Schedule 1, Part 2) and Items 211 and 212 (Schedule 2) of the Pharmacy Rules must be met (as per subsection 10(b) of the Pharmacy Rules).
Importantly, the following requirements must be met:
(a)The proposed premises are located in the same town as an approved premises (Item 132, 1(a));
(b)The proposed premises are at least 200 m, in a straight line, from the nearest approved premises (Item 132, 1(b));
(c)The proposed premises are at least 10 km, by the shortest lawful access route, from any approved premises other than the approved premises mentioned in Item 132, 1(b) (Item 132, 1(c));
(d)The Authority is satisfied that, at all relevant times, located in the same town as the proposed premises are at least the equivalent of 4 full-time prescribing medical practitioners practising (Item 132, 2(a));
(e)The Authority is satisfied that, at all relevant times, located in the same town as the proposed premises are one or 2 supermarkets which occupy a combined total gross leasable area of at least 2 500 m2 (Item 132, 2(b));
(f)The Authority is satisfied that Mr Wong had, on the day the application was made, and has, on the day the Authority makes a recommendation in relation to the application, a legal right to occupy the proposed premises on or after the day the application was made (Item 211, (a));
(g)The Authority is satisfied that the proposed premises, on the day the application was made and on the day the Authority makes a recommendation in relation to the application:
(i)could be used for the operation of a pharmacy under applicable local government and State or Territory laws relating to land development; and
(ii)would be accessible by members of the public at large,
(h)The Authority is satisfied that within 6 months after the day on which the Authority makes a recommendation in relation to the application, Mr Wong will be able to begin operating a pharmacy at the proposed premises (Item 211, (c));
(i)The Authority is satisfied that the proposed premises are not directly accessible by the public from within a supermarket (Item 211, (d));
(j)The Authority is satisfied that, on the day on which the application is made, the proposed premises are not approved premises (Item 212).
If any one or more of these requirements are not met, the Authority must recommend that an applicant not be approved (as per subsection 11(b) of the Pharmacy Rules).
The Authority considered all of the above.
The Authority’s recommendation on 22 January 2016 that Mr Wong’s application for the Proposed Premises not be approved was based on its finding that Mr Wong’s application did not meet the requirements of Item 132, 2(b) of the Pharmacy Rules. Specifically, the Authority was not satisfied that on the day on which the application was made and on the day on which the Application was considered by the Authority, located in the same town as the proposed premises, there were one or 2 supermarkets which occupied a combined total gross leasable area of at least 2 500m2.
It was agreed between the parties before this Tribunal that both Item 132, 2(a) (requiring the equivalent of 4 full-time prescribing medical practitioners practising) and Item 132, 2(b) (in relation to the requirement of a gross leasable area of at least 2 500 m2) were the only issues before the Tribunal. That is, it was agreed that Mr Wong’s application to the Authority met the remaining eight requirements listed above at paragraph 14. This consistent with the Tribunal’s assessment of the available evidence. The Tribunal is satisfied those eight requirements have been met and so finds.
As such, the Tribunal was asked to determine whether, on the day on which Mr Wong’s application was made to the Authority and on the day on which the application was made to the Tribunal (as per Item 132, 3 of the Pharmacy Rules and section 105AD of the Act), located in the same town as the Proposed Premises (as per Item 132, 1(a) of the Pharmacy Rules):
·there were at least the equivalent of 4 full-time prescribing medical practitioners practising; and
·there were one or 2 supermarkets which occupied a combined total gross leasable area of at least 2 500 m2.
As noted above, in order for Mr Wong’s application to receive a favourable recommendation, all of the requirements in Item 132, 1, Item 132, 2, Item 211 and Item 212 of the Pharmacy Rules must be met (as per subsection 10(b) and section 11 of the Pharmacy Rules, set out below).
As the Tribunal has concluded below that the requirement in Item 132, 2(a) (in relation to the equivalent of 4 full-time prescribing medical practitioners practising) has not been met, the Tribunal has not addressed the legislation, facts and issues relevant to Item 132, 2(b) of the Pharmacy Rules (relating to the gross leasable area). It is not required to do so.
EVIDENCE
This matter was heard in Perth over three days from 13 to 15 February 2017. The parties were represented as follows:
·Mr Shui Su Wong (as Applicant) was represented by counsel, Mr Favell. Mr Favell was instructed by Mr Fordham.
·The Australian Community Pharmacy Authority (as Respondent) was represented by counsel, Mr Dean, from the Australian Government Solicitor.
·Mr Consentino (as the Other Party) was represented by counsel, Mr Hoyne. Mr Hoyne was instructed by Ms Mihulka.
The Tribunal thanks Mr Favell, Mr Hoyne and Mr Dean and their instructors for their invaluable assistance with this matter. The legislation relevant to pharmaceutical registrations is complex and the procedures it requires from both the Tribunal and advocates can prove frustrating. The Tribunal acknowledges the clarity of the submissions (verbally and in writing) by all lawyers in this proceeding and thanks them for their invaluable assistance in relation to the jurisprudence, facts and issues before it.
The Tribunal received the following evidence:
·Statement of Mr Heath Fisher dated 8 February 2017 (A1)
·Applicant’s Statement of Agreed Facts dated 13 February 2017 (A2)
·Statement of Mr Brian Hotker dated 27 June 2016 (A3)
·Lease details (A4)
·Photographs of supermarket and surrounding areas (A5)
·Statement of Mr Luigi Sgambelluri dated 4 July 2016 (A6)
·Shire of Harvey District Planning Scheme No. 1 (A7)
·Statement of Dr Shashi Patel dated 14 February 2017 (A8)
·Statement of Ms Kylie Wilson dated 23 June 2016 (A9)
·Statement of Ms Kylie Wilson dated 13 February 2017 (A10)
·Updated Annexures A and B to A10 – All Harvey hours by medical practitioners (A11)
·Statement of Ms Julie Birch dated 19 September 2016 (A12)
·Statement of Ms Deborah Whittle dated 30 June 2016 (A13)
·Statement of Ms Deborah Whittle dated 14 February 2017 (A14)
·Bundle of documents produced under summons by Thompson Surveying Consultants (O1)
·Franchise Agreements – IGA and Cellarbrations (O2)
·Photograph of door between liquor store and supermarket (O3)
·Photographs (colour images of T document 17.1, pages 303 – 330) (O4)
·Photographs (colour images of T document 16.1, pages 272 - 280) (O5)
·Public Interest Assessment – Cellarbrations dated 7 December 2015 (O6)
·Photographs of carpark and entrance to IGA supermarket (O7)
·Photograph of IGA carpark sign (O8)
·Statement of Ms Carol Board dated 8 August 2016 (O9)
·Statement of Mr Billy Davis dated 31 July 2016 (O10)
·Statement of Mr William Davis dated 31 July 2016 (O11)
·Statement of Ms Vicki Forgiarni dated 29 July 2016 (O12)
·Statement of Mr Mark Holmes dated 30 November 2016 (O13)
·Statement of Ms Savannah Italiano dated 3 August 2016 (O14)
·Statement of Ms Gillian Matheson dated 9 August 2016 (O15)
·Statutory declaration of Ms Vikki O’Dea dated 14 July 2016 (O16)
·Statement of Mr Ronald Clarke dated 17 January 2017 (O17)
·Bundle of documents produced under summons by BCE Surveying Pty Ltd (O18)
·Bundle of documents produced under summons by Harley Dykstra Planning & Survey Solutions (O19)
·Statement of Ms Marjory Consentino dated 29 July 2016 (O20)
·Statement of Mr Sebastian Bolhuis dated 8 August 2016 (O21)
·Statement of Mr Vincent Consentino dated 9 August 2016 (O22)
·Photograph of sign for Supa IGA and Kambo’s (O23)
·Statement of Mr James Panetta dated 14 September 2016 (O24)
·T documents (R1)
·Fifth Community Pharmacy Agreement (R2)
·Sixth Community Pharmacy Agreement (R3).
Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
LEGISLATION
Subject to a few limited exceptions, an application for approval to supply pharmaceutical benefits must be referred to the Authority for a recommendation (subsection 90(3A) of the Act). Then, pursuant to section 90 of the Act, the Secretary of the Department of Health determines the application.
Subsection 90(3B) of the Act provides:
(3B)An approval may be granted under this section in respect of an application that has been referred to the Authority under subsection (3A) … only if the Authority has recommended the grant of the approval, but the Secretary may refuse to grant an approval even if the grant has been recommended by the Authority.
Subsection 99K(2) of the Act provides that in making its recommendation, the Authority must comply with the relevant rules determined by the Minister (under section 99L of the Act). In relation to this matter, the relevant rules are the Pharmacy Rules.
Section 105AD of the Act provides the Tribunal with authority to review a reviewable recommendation of the Authority -- in the present case being a recommendation that an applicant under section 90 of the Act not be approved under that section in respect of particular premises. In conducting such a review, the Tribunal makes a fresh decision under section 99K of the Act.
National Health (Australian Community Pharmacy Authority Rules) Determination 2011 (Determination No. PB 65 of 2011) (Cth)
As Mr Wong’s application was made before 10 November 2015, the Pharmacy Rules (as in force immediately before that date) continue to apply in relation to the consideration of that application (as per section 4 of the Pharmacy Rules).
Under subsection 9(b) of the Pharmacy Rules, the Tribunal has discretion to seek additional information from Mr Wong (and Mr Wong only) to the information that was before the Authority when the reviewable recommendation was made.
Mr Wong’s application is to be considered under subsection 10(b) of the Pharmacy Rules as his application relates to a new additional pharmacy. Subsection 10(b) of the Pharmacy Rules relevantly provides:
The Authority must recommend that an applicant be approved under section 90 of the Act in relation to particular premises if:
…
(b) for any other application:
(i) the application states that it is one of the kinds mentioned in column 2 of an item in Part 2 of Schedule 1; and
(ii)all the requirements set out in column 3 of that item are met; and
(iii)all the requirements set out in Schedule 2 are met.
Further, section 11 of the Pharmacy Rules provides:
The Authority must recommend that an applicant not be approved under section 90 of the Act in relation to particular premises if a requirement, under paragraph 10(a) or (b), that applies in relation to the application is not met.
Relevantly, Part 2 of Schedule 1 of the Pharmacy Rules provides:
Item
Kind of application
Requirements
132
New additional pharmacy (at least 10 km)
1. The proposed premises are:
(a) located in the same town as an approved premises; …
2. The Authority is satisfied that, at all relevant times, located in the same town as the proposed premises are:
(a) at least the equivalent of 4 full-time prescribing medical practitioners practising;
3. For this item, all relevant times means:
(a) on the day on which the application was made; and
(b) the day on which the application is considered by the Authority.
Item 132 of the Pharmacy Rules looks to a position both on the day on which the application was made and the day on which the application is considered by, materially now, the Tribunal (Item 132, 3 of the Pharmacy Rules and section 105AD of the Act).
Relevantly in relation to this matter, section 5 of the Pharmacy Rules provides a number of definitions, including the following:
full-time means:
(a) for a prescribing medical practitioner, providing the services of a prescribing medical practitioner for at least 38 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.
Note 2 to subsection 5(1) of the Pharmacy Rules states that the term medical practitioner is defined in subsection 3(1) of the Health Insurance Act 1973 (Cth) and has the same meaning in the Act as in the Health Insurance Act 1973 (Cth), as follows:
medical practitioner means a person registered or licensed as a medical practitioners under a law of a State or Territory that provides for the registration or licensing of medical practitioners but does not include a person so registered or licensed:
(a)whose registration, or licence to practise, as a medical practitioner in any State or Territory has been suspended, or cancelled, following an inquiry relating to his or her conduct; and
(b)who has not, after that suspension or cancellation, again been authorised to register or practice as a medical practitioner in that State or Territory;…
The Tribunal accepts that the medical practitioners relevant to the issues before it satisfy these requirements.
CONSIDERATION
Preliminary matter – Additional evidence to be considered by the Tribunal
Mr Wong asked that the Tribunal determine, as a preliminary issue on the review application, the question as to whether, having regard to section 9 of the Pharmacy Rules, the Tribunal could receive from him and consider for the review additional evidence that was not before the Authority at the time when the Authority made the decision under review.
With regard to the meaning of subsection 9(b) of the Pharmacy Rules in its application to the Tribunal, the Tribunal in Issa and Australian Community Pharmacy Authority [2012] AATA 374 stated its opinion at [32]:
“…an applicant does not have an unrestricted ability to introduce on a review hearing material that was not in the initial application. It is just that, in the ordinary course of events, there will necessarily be quite some lapse of time between when the application is made initially and when the tribunal comes to consider the matter on review.”
Mr Wong argued that the additional materials addressed relevant matters for the purpose of Item 132 of the Pharmacy Rules. These materials are in Exhibits A1, A4, A10, A11 and A14. Mr Wong also argued oral evidence of Mr Luigi Sgambelluri regarding a car park and the photographs in Exhibit A5 ought to be received from him and considered for the review.
The Other Party objected to the additional materials being admitted into evidence either on the basis that the Other Party had not yet had the opportunity to test the evidence or because it did not see their relevance.
The Tribunal, in meeting its objective to provide procedural fairness to all parties, had concerns that the Other Party had not had the opportunity to test the additional evidence and prepare any further evidence in response. Also, the Tribunal found it difficult to determine at that stage if the evidence to be heard regarding the additional materials was critical to Mr Wong’s application. However, the Tribunal was unconvinced that any evidence the Other Party needed to produce in response could not be adduced during cross-examination and was reluctant to adjourn the hearing at that stage.
In the circumstances, the Tribunal decided to accede to Mr Wong’s request on the basis that once the evidence was heard, the Other Party would have the opportunity to test the evidence and obtain further evidence in response if it considered it necessary. The Tribunal is satisfied that Mr Wong was given every opportunity to provide all relevant evidence to the Tribunal and examine, cross examine and re-examine witnesses accordingly.
Whether, on the day of Mr Wong’s application to the Authority and on the day on which the application was considered by the Tribunal, there were at least the equivalent of 4 full-time prescribing medical practitioners practising in Harvey
This issue is central to Mr Wong’s application. If he does not satisfy this requirement, his application fails.
Prescribing medical practitioner is defined in Part 1 section 5 of the Pharmacy Rules as:
… 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
Full time is also defined in section 5. The relevant part of that definition reads:
(a)for a prescribing medical practitioner, providing the services of a prescribing medical practitioner for at least 38 hours each week;
The Explanatory Statement for the Pharmacy Rules provides (in its note regarding Item 132) that, in respect of Item 132, an explanation of “equivalent of,” “full time” and “medical practitioner” is provided in the Explanatory Statement’s treatment of Item 136 of the Pharmacy Rules. This reads as follows:
Full-time PBS prescriber (including medical practitioner), means providing the services of a PBS prescriber for at least 38 hours each week. For example, for a medical practitioner, time spent consulting with patients at their home or in hospital is included when calculating the hours that a medical practitioner practises at a medical centre. Time spent consulting at other medical centres, working at a hospital (rostered duties), attending nursing homes and undertaking administration work for the medical centre/practice, such as staff rosters, is not counted towards the time spent practising at the medical centre/practice.
The equivalent of a full-time PBS prescriber means any number of PBS prescribers who provide the equivalent services of one full-time PBS prescriber. For example, if one part-time PBS prescriber practises 20 hours each week and another practises 18 hours each week, then they will be considered the equivalent to one full-time PBS prescriber (i.e. their combined practice hours equal 38 hours). Similarly, if one PBS prescriber practises 57 hours each week then they are considered the equivalent to one and a half full-time PBS prescribers.”
The task for the Tribunal in determining this issue is to assess the evidence before it in relation to how many prescribing practitioners are located in Harvey at the relevant time and the hours worked by those practitioners.
Mr Wong contended that while the assessment as to hours worked is to be made by reference to the 38 hour week set out in the Pharmacy Rules, a broader approach to determining those hours ought to be adopted for the purpose of determining whether Item 132, 2(a) has been met.
Mr Wong based this contention on the reference by Deputy President Constance in the decision of Issa and Anor and Australian Community Pharmacy Authority [2013] AATA 292 at [26] as to the ordinary meaning of the word practising:
“The requirement of the Rules is that I be satisfied that there be “at least the equivalent of four full-time prescribing medical practitioners practising” (emphasis added). The Oxford Dictionary defines “to practise” to include “to be engaged in the profession of law or medicine.” This accords with the ordinary meaning of the word “practising” as meaning that a medical practitioner is normally engaged in carrying out his or her profession rather than meaning that he or she being actually employed in treating patients at a particular time. In my view the correct test in applying Item 132, 2(a) of the Rules is to determine the number of medical practitioners engaged in the profession of a “prescribing medical practitioner” in the particular town at the time of the application rather than to embark upon a detailed analysis of the precise number of hours those practitioners are rostered to work at that particular date. To adopt the alternative interpretation would mean that even if there were four practitioners, each engaged in full-time practice in a town, an application for the approval under the Rules would fail if one of those practitioners was on short-term leave on the day an application was made or the application was lodged on a public holiday.”
Mr Wong submitted that the Issa decision is authority for the following propositions:
·All time the doctors spend at the surgery is relevant and includes lunchtimes and other times that the doctors are not seeing patients -- not just the time that the doctor is actually employed in treating patients.
·As the assessment of the requirement of Item 132, 2(a) of the Pharmacy Rules is with regard to the evidence “on the day the application was made” and then again “on the day the Authority considers the application” (as per Item 132, (3) of the Pharmacy Rules), a detailed analysis of the precise number of hours being worked could lead to an application failing simply because, for example, a doctor was ill or on leave on a particular day.
The Other Party claimed that Mr Wong’s submissions on this point are jurisprudentially unsound and contrary to a number of Federal Court and Tribunal decisions (none of which were considered by the Tribunal in the Issa decision). The Other Party gave the example of the Federal Court’s decision in Ranallo v Australian Community Pharmacy Authority (2009) 108 ALD 57, in response to an argument put by Ms Ranallo that the approach to determining the number of hours worked by medical practitioners was not limited to a simple mathematical exercise.
In Ranallo, The Federal Court held that it preferred the submission of the Australian Community Pharmacy Authority that:
[45]There is, …, some discretion so that if there are a number of doctors who might be regarded as full-time in practice and a number of doctors who might be considered part-time and their total hours of practice at the centre was, for argument’s sake, 300 rather than the mathematical 304, which is eight times 38, then it would be, nevertheless, within the authority’s discretion to be satisfied that there was the equivalent of at least eight full-time medical practitioners. Thirty-eight hours, …, is simply used as a guideline, as a benchmark … on the basis that it’s a generally accepted community standard.
The Court then stated as follows in relation to what ought to be considered in determining whether a person is engaged in a particular activity, occupation or employment on a “full-time” basis:
[46]As a starting point, I consider that the determination of whether a person is engaged in a particular activity, occupation or employment on a “full-time” basis will be determined by reference to the amount of time which a person devotes to that activity, occupation or employment…
…
[48]It is necessary to consider the meaning of the expression “full-time” in the full context of “at least 8 full-time prescribing medical practitioners”. It is not possible to determine what constitutes “the equivalent of” until the meaning of the full expression is first determined. “Full-time” is defined in the Macquarie Dictionary Online Website as being as follows:
Adjective 1. of, or relating to, or taking all the normal working hours (opposed to part-time) 2. of, or relating to, something which occupies a person all the time. 3.Sport of or relating to the time at which play is to end: the full-time whistle — adverb4. during all normal working hours. — noun5. Sport the time at which play is to end.
[49]It follows in my view that the expression “full-time prescribing medical practitioners” is referring to medical practitioners who are engaged in providing general practice services on a full-time basis as opposed to providing them on a part-time basis. The expression, therefore, is concerned with the number of hours worked by prescribing medical practitioners over a normal working week so as to determine who may be classed as being full-time. A “full-time” prescribing medical practitioner for the purpose of para 3(a) is one who works at least 38 hours per week over a normal working week of at least 5 days.
As to the meaning of “the equivalent of”, the Federal Court in Ranallo held further (at [53]):
In my view there does remain a discretionary component by varying the combinations so that some practitioners may work longer than 38 hours per week, some may work fewer but as long as the aggregate can equate to, on a mathematical computation, practitioners each working a 38 hour week, the requirements of the Rule would be satisfied.
The Other Party also drew the Tribunal’s attention to the decision of Senior Member Popple in St Mary Health & Community Services Pty Ltd and Australian Community Pharmacy Authority [2016] AATA 673 (1 September 2016) at [19] in the context of the meaning of “full time” in section 5 of the Pharmacy Rules for the purpose of Item 132, 2(a) of the Pharmacy Rules, wherein Senior Member Popple explained: :
Section 5 of the Rules provides that “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”. Section 5 also provides that, in this context, “full-time means ... providing the services of a prescribing medical practitioner for at least 38 hours each week”. It follows that the requirement that there are “at least the equivalent of 4 full-time prescribing medical practitioners practising” means that there are a number of prescribing general practitioners (GPs) practising for a total of at least 152 hours (that is, 4 × 38 hours) each week in [the relevant town].
The Other Party submitted that Mr Wong’s contention (i.e., that if attention was paid only to the precise number of hours doctors were rostered to work on a particular date then unintended consequences might flow in the event of a practitioner taking short term leave) would only be accurate if genuine leave was not taken into account. The Other Party took the view that a full time doctor’s annual leave and sick leave can be factored into the analysis but this analysis requires consideration of the hours ordinarily worked over a 5 day week.
As to the task of assessing the hours worked by medical practitioners for the purpose of Item 132, 2(a), the Tribunal prefers the Other Party’s numerical approach because:
(a)The numerical approach is consistent with the objectives of the Pharmacy Rules, in particular the Explanatory Statement to the Pharmacy Rules, which, in respect of Item 132, clearly states that a full-time PBS prescriber (including medical practitioner) means providing the services of a PBS prescriber for at least 38 hours each week.
(b)The approach taken in the Ranallo decision (which is not referred to in the Issa decision) and in the St Mary Health decision (which is subsequent to the Issa decision) was also that of a mathematical exercise in determining whether a prescribing medical practitioner reaches the required 38 hour weekly target in order to be considered full-time.
As to the kinds of work that can be included in the assessment, the Explanatory Statement to the Pharmacy Rules also clearly states that for a medical practitioner, time spent consulting with patients at their home or in hospital is included when calculating the hours that a medical practitioner practises at a medical centre. Time spent consulting at other medical centres, working at a hospital (rostered duties), attending nursing homes and undertaking administration work for the medical centre/practice, such as staff rosters, is not counted towards the time spent practising at the medical centre/practice.
Mr Wong also contended that because the definition of ‘prescribing medical practitioner’ refers to general practice services to the community in which he or she practises, those services are not limited to the town where the medical practitioner is located.
The Authority submitted that whilst this contention is “technically correct”, it does not assist Mr Wong because Item 132 of the Pharmacy Rules requires the Authority to be satisfied that, at all material times, the 4 full-time prescribing medical practitioners are located in the same town as the proposed premises.
The Authority considered that while a ‘prescribing medical practitioner’ could conceivably provide general practice services outside the same town in which there are proposed premises, provided he or she otherwise meets the requirements of a full-time prescribing medical practitioner under Item 132, 2(a), any hours spent by a prescribing medical practitioner providing general practice services to a community not located in the same town as the proposed premises are not hours that can be counted towards the total number of hours necessary to determine whether Item 132, 2(a) has been met. The Other Party made a similar submission in relation to this point.
The Tribunal considers that in order for those general practice services to be provided to the community, in keeping with the definition of prescribing medical practitioner in the Pharmacy Rules, Item 132, 1(a) of the Pharmacy Rules requires that those services must be provided in the town of Harvey.
As such, in relation to this issue, the Tribunal must determine whether, as at 9 November 2015 and in February 2017, a medical practitioner upon whom Mr Wong places reliance for the purposes of satisfying the requirements of Item 132, 2(a) of the Pharmacy Rules:
(a)was a medical practitioner who provided general practice services, including issuing prescriptions, in the town of Harvey; and if so,
(b)was he or she a medical practitioner that provided the services of a prescribing medical practitioner for at least 38 hours each week.
Given the wording of Item 132, 2(a) of the Pharmacy Rules (“at least the equivalent of” 4 full time prescribing medical practitioners), when read with the decision in St Mary Health, an individual doctor’s hours that fall short of 38 weekly hours may be included if the total weekly hours worked by prescribing medical practitioners in Harvey is at least 152 hours at the relevant times.
It is not in dispute that:
(a)There are two medical practices located in Harvey, namely:
(i) Wellington Medical Centre; and
(ii) Harvey Medical Group.
(b)The Western Australia Country Health Service provides a locum service to Harvey Hospital.
Evidence was lead before the Tribunal in relation to these premises as follows.
Wellington Medical Centre
During the hearing of this application Mr Wong provided the Tribunal with a written statement by Ms Deborah Whittle, Practice Manager of Wellington Medical Centre, dated 14 February 2017 (A14). Ms Whittle had earlier provided a statement to the Tribunal dated 30 June 2016 (A13) and a statutory declaration dated 4 November 2015 (T8.10 at 242). Ms Whittle also gave oral evidence by telephone.
Ms Whittle gave evidence before the Tribunal that she reviewed the practice records kept by the Wellington Medical Centre for the periods 7 September 2015 to 15 November 2015, 25 April 2016 to 24 June 2016, 5 December to 12 February 2017 and that she reviewed the projected roster for the week beginning Monday 13 February 2017. Ms Whittle explained that Dr L M Yap and Dr S Venter were the prescribing medical practitioners working at the Wellington Medical Centre and at the Hocart Aged Care Facility (located in Harvey) throughout these periods.
In the annexures to her statements (A13 and A14), Ms Whittle provided a series of calculations as to the average weekly hours worked by Dr Yap and Dr Venter at the Wellington Medical Centre for the above periods, as follows:
Period
Total hours worked
(excluding leave)
Dr Yap
Dr Venter
7 September 2015 to 15 November 2015
26.7 hours
25.5 hours
25 April 2016 to 24 June 2016
(N.B. 9 week period)
18.83 hours
21.33 hours
27 June 2016 to 4 September 2016
23.4 hours
15.85 hours
5 December 2016 2016 to 12 February 2017
21.85 hours
17.85 hours
Projected roster for the week beginning 13 February 2017 (with no projected leave hours)
27 hours
22.5hours
In relation to these figures, Ms Whittle explained that:
(a)For the period 7 September 2015 to 15 November 2015, the doctors took, on average, 2.1 hours of leave per week.
(c)For the period 25 April 2016 to 24 June 2016, the doctors took, on average, 6.4 hours of leave per week.
(d)In the week of 9 November 2015, the doctors worked 54 hours and took no “leave.”
(e)For the period 5 December 2016 to 12 February 2017, the doctors took, on average, 9.95 hours of leave per week.
(f)In the week of 13 February 2017, no “annual leave” was rostered.
(g)The “Total Hours Excluding Leave” figures provided in Annexures to her various statements are exclusive of lunch breaks, public holiday or sick leave/recreational leave periods and exclude all Harvey District Hospital hours. The figures also exclude periods where the doctors are at the medical centre, but not seeing patients.
(h)Had the Harvey District Hospital hours been included in every week during the two months prior to 4 November 2015, the period captured by her statutory declaration (T8.10 at 242) the total rostered hours of attendance by Doctors’ Yap and Venter in Harvey, at the Wellington Medical Centre and at the Harvey District Hospital exceeded 71.5 hours.
Ms Whittle also gave evidence that Dr Yap and Dr Venter were then and are now engaged to provide one 24 period of cover each, per week, at the Harvey District Hospital on an “on call” basis. Ms Whittle said that in their rosters, each doctor allows for a daily half hour visit to Harvey District Hospital to perform in-patient rounds (with only one doctor attending on Saturdays). Ms Whittle said while the allocated time is half an hour per day, how long each doctor spends with each patient is their own choice. Ms Whittle also said that time spent with patients on in-patient rounds can vary and these visits actually occur only on days that the doctor has a patient at the hospital.
During cross-examination by the Authority, Ms Whittle conceded that with regard to the hours deducted from the figures for public holiday and leave periods it is unclear from her tables the exact dates upon which those holidays or leave were taken and the type of leave taken on that particular date. Ms Whittle also confirmed that the “10 week average” figures were inclusive of public holidays and the figures provided were cumulative in the sense that there was no distinction between hours worked at the Wellington Medical Practice and hours worked at the Hocart Aged Care Facility.
Ms Whittle gave evidence that she had been asked simply to provide a 10 week average for each period.
Mr Wong contended that Ms Whittle’s figure in her statutory declaration (T8.10 at 242) of 71.5 hours per week for both doctors combined at the Wellington Medical Centre and the Harvey District Hospital as at 9 November 2015 (the date of Mr Wong’s application) ought to be adopted. It is unclear whether Mr Wong also contended that the 71.5 hour figure includes leave or periods where the doctors are at the surgery but not seeing patients (the latter of which, Mr Wong submits, should be taken account of given its interpretation of the comments by Deputy President Constance in the Issa case).
Mr Wong also contended that Ms Whittle’s estimates for the week beginning 13 February 2017 (when the Tribunal heard the matter) ought to be increased by an additional estimated 2.75 hours per doctor, per day, to account for the daily half hour hospital ‘inpatient’ visits plus an allowance of time for all periods to take into account “on call” services where both doctors are available over a 24 hour period. This is on the basis that, according to Mr Wong, “being on call is a service in itself”. Consistent with that contention, Mr Wong also argued that as the locum service is provided to Harvey Hospital for no less than 120 hours per week (24 hours per day for 5 days each week) during that period the general services of a prescribing medical practitioner are provided. It therefore follows, he contended, that the locum’s hours should be included for the purposes of determining whether the threshold for doctor’s hours is met.
Ms Whittle’s evidence is problematic but through no fault of her own. Firstly, regarding the 71.5 hour estimate for the two months’ prior to 4 November 2015, provided in Ms Whittle’s statutory declaration (T8.10 at 242):
(a)The estimate provided is not supported by any primary source (for e.g. rosters or spreadsheets) and it is unclear how the figure was reached.
(b)It is unclear whether the figure includes “leave” and if so, what constitutes that leave.
(c)It is impossible to determine from her estimates how many of those hours were actually worked at the Wellington Medical Centre, as opposed to being worked at the Harvey District Hospital. This feature renders it impossible to attempt to reconcile, for accuracy, the 71.5 hour figure (purported to relate to the two months prior to 4 November 2017) with the period in Ms Whittle’s annexures to which it most closely relates (7 September 2015 to 15 November 2015). The latter is purported to include only Wellington Medical Centre hours, which, by Ms Whittle’s calculations exclude ‘leave’; however, it is unclear whether the 71.5 hour estimate includes or excludes leave and if so what it meant by ‘leave.’ These uncertainties reduce the Tribunal’s confidence in relation to adopting the 71.5 hour figure.
(d)Paragraph 3 of Ms Whittle’s statutory declaration states that the 71.5 hours include the hours “a prescribing medical practitioner is in attendance and available to see patients”, which would include periods where the doctor was not actually seeing patients. Even if the Wellington Medical Centre Hours were distinguishable from the Harvey District Hospital hours (which they are not), there is no distinction between hours spent actually seeing patients from the hours spent being available to see patients but not actually seeing them, whether this be while on rostered duties at the hospital or when being ‘on call.’ The Tribunal considers this distinction to be necessary given its discussion of rostered hours above and its treatment of the issue of ‘on call’ hours given below. These issues, coupled with the lack of a primary source of evidence, render it impossible for the Tribunal to calculate the hours actually worked by the doctors during that period to provide the services of a prescribing medical practitioner in accordance with the requirements of Item 132, 2(a).
(e)To summarise, the 71.5 hour figure provided by Ms Whittle is largely without explanation, irreconcilable with other figures pertaining to that period of time and, in the Tribunal’s view, cannot be adopted.
Secondly, regarding Ms Whittle’s evidence summarised in the table at paragraph 66 above:
(a)In its assessment of the total weekly hours worked by a particular medical practitioner for the purpose of Item 132, 2(a) of the Pharmacy Rules, the Tribunal cannot include time spent in hospitals unless doctors are looking after their own patients and cannot include administrative time (as per the Note to Item 132 of the Explanatory Statement to the Pharmacy Rules). Ms Whittle’s figures provided in the annexures to her statements (A13 and A14) captured in the table above do, by her own oral evidence, exclude the time spent at Harvey Hospital. However, the figures do not distinguish between hours worked at the Wellington Medical Practice and hours worked at the Hocart Aged Care Facility (a separate facility to Harvey Hospital where some of the doctors in Harvey visit their own patients, if they have patients residing there). No evidence was provided by Ms Whittle as to the arrangement with the Hocart Aged Facility (how often the doctors worked there and/or had patients there, for example) to enable the Tribunal to make an assessment of the hours worked at the Hocart Aged Care Facility (which is unknown) that ought to be included in the total.
(b)With regards to leave, the Other Party advanced a number of arguments regarding the leave being claimed, stating that it must be ‘genuine’ or ‘actual’ leave, rather than just time where the doctor was not working and doing whatever else they wanted to do. While Ms Whittle’s figures appear to exclude ‘leave’ (being lunch breaks, public holiday or sick leave/recreational leave), as there is no evidence as to what dates the leave took place and the type of leave taken on a particular date, there is no way of being satisfied as to what the legitimate leave hours actually were.
(c)In summary, the Tribunal is of the view it cannot rely on the figures in the annexures to Ms Whittle’s statements (A13 and A14) because it is unable to determine with any certainty from those figures the hours worked by the medical practitioners at the Wellington Medical Practice, whether those hours should include or exclude the hours worked at the Hocart Aged Care Facility (for which no separate figures were given) and because the “10 week average” figures also include public holidays, which the Tribunal considers ought to have been captured within the ‘leave’ figures. The Tribunal also lacks confidence in the figures insofar as they relate to the recording of leave in that is unable to distinguish between the various types of leave and hence impossible to conclude whether ‘public holiday’ days have been accounted for twice.
Thirdly, regarding Ms Whittle’s evidence of the ‘on call’ hours:
(a)The Tribunal takes the view that when a doctor is ‘on call,’ in the sense that he or she is simply making himself or herself available to see patients (and when he or she could be doing any number of things in the area at that time) the time spent does not meet the legislative test for providing general practice services to the community. In forming this view the Tribunal notes that Item 136 of the Pharmacy Rules, as it relates to Item 132 of the Pharmacy Rules (set out at paragraph 46 above) expressly includes hospital hours spent consulting with patients. It does not count hours spent working at a hospital on rostered duties.
(b)The Tribunal considers that even if a doctor does provide general practice services once called, those hours worked would need to be accurately recorded in order to be meet the inclusion criteria in Item 136 of Explanatory Statement for the Pharmacy Rules and also to eliminate the potential for overlap of time in instances where the doctor ‘on call’ to a hospital may also be working in their surgery at the same time. No actual figures of hours worked at the hospital treating patients during an ‘on call’ period were provided by Ms Whittle and it is not a task for the Tribunal to estimate speculatory figures. The Tribunal also finds Mr Wong’s suggestion that Ms Whittle’s estimates for the week beginning 13 February 2017 ought to be increased by an additional estimated 2.75 hours per doctor (to account for the daily half hour hospital ‘inpatient’ visits) is unacceptable on the same bases.
(c)The Tribunal notes further that if Mr Wong’s approach to “on call” hours was adopted, then 120 hours of the 152 weekly hours required to meet the legislative test would be met from on call hospital hours alone, without any ability to test or estimate the number of hours that general practice services were actually provided. The Tribunal considers that such an outcome would be inconsistent with the discussion of Item 136 in the Explanatory Statement for the Pharmacy Rules with regards to the types of duties for inclusion in the time spent consulting with patients. For example, given the Tribunal accepts that time spent consulting at other medical centres, working at a hospital (rostered duties), attending nursing homes and undertaking administration work for the medical centre/practice, such as staff rosters, are not counted towards the time spent practising at the medical centre/practice, then to include ‘on call’ hours in the manner proposed by Mr Wong would stray even further from that list of exclusions.
Overall, given the issues with Ms Whittle’s evidence set out above, the Tribunal cannot be satisfied that on the day of Mr Wong’s application to the Authority and on the day on which the application was considered by the Tribunal, the doctors at the Wellington Medical Centre individually worked 38 hours in any of the relevant weeks, or on average, or combined worked 152 hours in any of relevant weeks, or on average.
Harvey Medical Group
Ms Kylie Wilson, Practice Manager of Harvey Medical Group gave oral evidence to the Tribunal by telephone. Ms Wilson had earlier provided a statutory declaration dated 2 November 2015 (T8.11 at 243) and a statement dated 23 June 2016 (A9). At the hearing of this matter, Ms Wilson provided an additional statement dated 13 February 2017 (A10) along with further updated annexures to that statement containing amended figures to those originally provided in the original annexure to the statement dated 13 February 2017 (A11).
Ms Wilson gave evidence before the Tribunal that she had reviewed the practice records kept by the Harvey Medical Group for the periods 7 September 2015 to 15 November 2015, 25 April 2016 to 24 June 2016, 24 June 2016 to 11 February 2017 and had reviewed the projected roster for the week beginning 13 February 2017. Ms Wilson explained that during these periods prior to 13 February 2017, the prescribing medical practitioners working at the Harvey Medical Group were Dr Hoon Loom Wu, Dr Jagdev Sarwan Singh, Dr Jacqueline Sarah Earl, Dr Prabaharan Pachaiappan and Dr Shally Gupta. Ms Wilson also explained that Dr Sherina De Almeida was due to commence at Harvey Medical Group on 13 February 2017.
Ms Wilson provided, as annexures to her statements dated 23 June 2016 (A9) and 13 February 2017 (A11), a series of calculations as to the average weekly hours worked by the above prescribing medical practitioners, as follows:
[1] The Tribunal has not set out in the above table the individual figures provided in Ms Wilson’s evidence for this period. There are issues regarding the figures provided for Drs’ Singh and Gupta (set out below). While the figures for Dr Gupta could, in theory, simply be deleted and replaced with ‘nil,’ it is arguable that the figures for Dr Singh would be greater than nil. However, there is no way for the Tribunal to estimate on the evidence what the figures for Dr Singh might be. Nor is it a task for the Tribunal to speculate those figures.
Period | Total hours worked (excluding leave) | |||||
| Dr Hoon Loom | Dr Jagdev Singh | Dr Jacqueline Earl | Dr Prabaharan Pachaiappan | Dr Shally Gupta | Dr Sherina De Almeida | |
| 7 September 2015 to 15 November 2015 | 13.70 | 26.00 | 21.00 | 12.75 | 11.75 | n/a |
| 25 April 2016 to 24 June 2016 (N.B. 9 week period) | 12.94 | 29.50 | 24.50 | 12.00 | 15.50 | n/a |
| 24 June 2016 to 11 February 2017 | See footnote[1] | |||||
| Projected roster for the week beginning 13 February 2017 (with no projected leave hours) | 12.5 | 26.00 | 28.50 | 0.00 | 0.00 | 21.00 |
In relation to these figures, Ms Wilson gave evidence before the Tribunal that:
(a)For the period 7 September 2015 to 15 November 2015, the doctors took, on average, 26.3 hours of leave per week.
(b)For the period 25 April 2016 to 24 June 2016, the doctors took, on average, 6.4 hours of leave per week.
(c)In the 6 months leading to February 2017, the doctors worked on average 90 hours per week and took, on average, 12.4 hours of “leave” per week.
(d)In the week of 13 February 2017, 13 hours of “annual leave” was rostered.
(e)Time recorded as ‘annual leave’ means time spent in training, upskilling, in a meeting or working at another surgery or as a ‘day off.’ During the time attributed to leave, doctors are doing ‘whatever they want to do.’
(f)The hours recorded for Dr Gupta in January 2017 were incorrect as Dr Gupta did not work at the Harvey Medical Group in January 2017 and hence those hours should be deleted.
(g)For the period 24 June 2016 to 11 February 2017 only, a separate column had been included for Dr Singh’s inpatient hospital hours, but these figures were based on Dr Singh’s verbal estimate and not the hours actually worked.
(h)She was unsure if there were any errors in her figures in addition to those noted in relation to Drs’ Gupta and Singh.
In her statutory declaration dated 2 November 2015 (T8.11 at 243), Ms Wilson gave evidence that in every week during the two months prior to 2 November 2015, the total hours of attendance by the doctors at Harvey Medical Group exceeded 103.5 hours. At the hearing, Ms Wilson explained that this figure was derived from the 85.2 total average weekly hours worked by the doctors (the total number of hours in the shaded row in the table above) plus the combined average weekly total of 18.3 hours of leave taken during that period.
Similarly to the contention made in relation to the 71.5 hour figure given by Ms Whittle in her statutory declaration (T8.10 at 242), Mr Wong contended that Ms Wilson’s figure in her statutory declaration (T8.11 at 243) of 103.5 hours per week for all doctors at the Harvey Medical Group during the two months prior to 2 November 2015, ought to be adopted.
Ms Wilson’s evidence is also problematic.
Firstly, regarding the 103.5 hour estimate for the two months’ prior to 2 November 2015, provided in Ms Wilson’s statutory declaration (T8.11 at 243):
(a)While the 103.5 hour estimate is sourced from the figures provided in the annexures to Ms Wilson’s statements and an explanation was provided as to how the figure was reached, Ms Wilson was uncertain as to whether the figures in the table (for all periods) contained any errors additional to those identified in relation to the hours for Drs’ Singh and Gupta.
(b)While the 103.5 hour estimate is stated to include the combined average weekly total hours of leave taken during that period, it is unclear what constitutes that leave. The Tribunal cannot be certain that the leave hours represent genuine leave from work, rather than time where, by Ms Wilson’s evidence, doctors could also be in a meeting or working elsewhere (without any certainty as to where the ‘elsewhere’ was during that period and whether or not that work ‘elsewhere’ included hospital duties, which present further issues in themselves regarding rostered duties and being ‘on call.’ These further issues are discussed above and below).
(c)Paragraph 3 of Ms Wilson’s statutory declaration states that the 103.5 hours include the hours “a prescribing medical practitioner is in attendance and available to see patients”, which would include periods where the doctor was not actually seeing patients. However, in the statutory declaration there is no distinction between hours spent actually seeing patients from the hours spent being available to see patients but not actually seeing them, whether this be while on rostered duties at the hospital or when being ‘on call.’ The Tribunal considers this distinction to be critical given its discussion of rostered hours above and its treatment of the issue of ‘on call’ hours given above. These issues, coupled with the lack of a primary source of evidence, render it impossible for the Tribunal to calculate the hours actually worked by the doctors during that period to provide the services of a prescribing medical practitioner in accordance with Item 132, 2(a) of the Pharmacy Rules.
For these reasons, the Tribunal is of the view that the 103.5 hour figure provided by Ms Wilson (and her evidence generally in this regard) is unreliable and cannot be adopted.
Secondly, regarding Ms Wilson’s evidence summarised in the table at above:
(a)Ms Wilson gave evidence before the Tribunal that the hours recorded for Dr Gupta in January 2017 were incorrect and the hours recorded in relation to Dr Singh’s inpatient hospital hours for the period 24 June 2016 to 11 February 2017 were based on Dr Singh’s verbal estimate and not the hours actually worked. Ms Wilson also gave evidence that she was unsure if there were any errors in her figures in addition to those noted in relation to Drs Gupta and Singh.
(b)In light of these errors, and given the fact that the Tribunal cannot be certain that there are no additional errors in the figures provided by Ms Wilson, the Tribunal considers provided by Ms Wilson in the annexures to her statements (at A9 and A11) and captured in the table at above, cannot be adopted.
92.With respect to Ms Wilson’s calculations of hours worked, Mr Wong submitted that these figures do not include the extra 10 minutes on average per day that each doctor at the Harvey Medical Centre spends with the last patient of every day. The Authority drew the Tribunal’s attention to the fact that the time allocated by Ms Wilson to each doctor in this regard is rounded to the next half hour, not to 10 minutes and hence is ‘not that precise’. Given no argument was put by Mr Wong to resolve this imprecision, and by Ms Wilson’s own evidence she did not know how long each doctor would spend with the last patient of the day, the Tribunal cannot be satisfied that the extra time should be included.
Overall, given the issues with Ms Wilson’s evidence set out at paragraphs 83, 85 and 86 above, the Tribunal cannot be satisfied that on the day of Mr Wong’s application to the Authority and on the day on which the application was considered by the Tribunal, the doctors at the Harvey Medical Group individually worked 38 hours in any of the relevant weeks, or on average, or combined worked 152 hours in any of relevant weeks, or on average.
Harvey Hospital
Dr Shashi Patel, General Practitioner, gave oral evidence to the Tribunal by telephone. Mr Patel provided a written statement dated 14 February 2017 (A8).
Dr Patel gave oral evidence to the Tribunal that he was engaged by the Western Australian Country Health Service to provide locum services to Harvey Hospital, including the issuing of prescriptions for pharmaceutical benefits, which he had done for at least part of the last 6 months.
Dr Patel explained that a locum doctor commences at 8am on each Friday morning and provides “seamless cover” until 8am Wednesday morning. Further, Dr Patel explained this cover is provided by one doctor at a time.
Dr Patel said that he resides within a few minutes of Harvey Hospital and was “on call”, attending the hospital as and when needed. Dr Patel said that it was not possible for him to estimate the hours that he has worked or would work as a locum doctor.
Dr Patel was unable to estimate the number of hours that he has worked or would work as a locum doctor, at any time let alone at the relevant times for the purposes of the present application.
The inclusion of hours recorded as ‘on call’ hours in Dr Patel’s performance of his engagement as a locum doctor at Harvey Hospital were the subject of numerous arguments by the parties that were similar to those put in relation to Ms Whittle’s evidence of the on call hours worked by Drs’ Yap and Venter at the Wellington Medical Centre.
On this point the Tribunal reiterates its comments above insofar as they apply Mr Patel, namely:
(i)The Tribunal takes the view that when a doctor is ‘on call,’ in the sense that he or she is simply making himself or herself available to see patients (and when they could be doing any number of things in the area at that time) the time spent does not meet the legislative test for providing general practice services to the community. In forming this view the Tribunal notes Item 136 of the Pharmacy Rules (as set out at paragraph 46 above) expressly includes hospital hours spent consulting with patients. It does not count hours spent working at a hospital on rostered duties.
(ii)The Tribunal considers that even if a doctor does provide general practice services once called, those hours worked would need to be accurately recorded in order to be meet the inclusion criteria in Item 136 and also to eliminate the potential for overlap of time in instances where the doctor ‘on call’ to a hospital may also be working in their surgery at the same time. No actual figures of hours worked at the hospital treating patients during an ‘on call’ period were provided by Mr Patel and it is not a task for the Tribunal to estimate in relation to speculatory figures.
The Tribunal can only work the evidence it has before it. Overall, given the issues with Ms Whittle’s evidence, Ms Wilson’s evidence and Mr Patel’s evidence, the Tribunal is not satisfied that on the day of Mr Wong’s application to the Authority and on the day on which the application was considered by the Tribunal the doctors at the Wellington Medical Centre and at the Harvey Medical Group and the doctors ‘on call’ at Harvey Hospital:
(j)individually, worked 38 hours in any of the relevant weeks
(ii) combined, worked 152 hours in any of the relevant weeks, or on average.
In the circumstances, it cannot be said that there were at least the equivalent of 4 full-time prescribing medical practitioners practising in Harvey at all relevant times (as per Item 132, 2(a) of the Pharmacy Rules. The Tribunal finds that Item 132, 2(a) of the Pharmacy Rules is thus not satisfied.
The Tribunal used every avenue available to it to ensure that it had all of relevant evidence on the issue of whether the requirements of Item 132, 2(a) of the Pharmacy Rules had been met. This included allowing into evidence the additional materials produced by Mr Wong at the commencement of the hearing -- in particular an additional statement and updated annexures from Ms Wilson (A10 and A11) and an additional statement from Ms Whittle (A14). In doing so, the Tribunal noted the Other Party’s objections to this course of action.
On this point, the Tribunal makes no criticism of the evidence provided by Ms Whittle and Ms Wilson. Their evidence was provided in considerable detail and under significant time pressures. The Tribunal is grateful to Ms Whittle and Ms Wilson for the assistance they provided in preparing their various statements, annexures and statutory declarations and in giving evidence at the hearing.
CONCLUSION
Subsection 10(b) and section 11 of the Pharmacy Rules provide that all of the necessary requirements of Item 132, 2(a) must be satisfied in order for the Tribunal to give a favourable recommendation in relation to Mr Wong’s application.
The Tribunal finds that the requirements in Item 132, 2(a) of the Pharmacy Rules have not been satisfied because, on the available evidence, it is unable to properly assess whether the sufficient number of hours worked by the prescribing medical practitioners have been achieved, and if not, by how many hours the total falls short.
In the circumstances, the Tribunal is not required to (nor will it) determine the issue of whether, on the day of Mr Wong’s application to the Authority and on the day on which the application was considered by the Tribunal, there were one or 2 supermarkets which occupied a combined total gross leasable area of at least 2500 m2 (as per Item 132, 2(b) of the Pharmacy Rules).
DECISION
For the reasons outlined above, the recommendation of the Authority made on 22 January 2016 (that Mr Wong’s application made on 9 November 2015 to supply pharmaceutical benefits from particular premises not be approved) is affirmed.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall.
..........[Sgd]..............................................................
Administrative Assistant
Dated: 9 May 2017
Date of hearing: 13-15 February 2017 Date final submissions received: 17 March 2017 Counsel for the Applicant: Mr D Favell Counsel for the Respondent: Mr B Dean Solicitors for the Respondent: Australian Government Solicitor Counsel for the Joined Party: Mr M Hoyne
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