FEDERAL COURT OF AUSTRALIA

Traill v McRae [2002] FCAFC 235

ADMINISTRATIVE LAW – judicial review of a decision of the Professional Services Review Tribunal – medical practitioner – ‘inappropriate practice’ – ‘inappropriate level of clinical input’ – whether the Tribunal erred in failing to conclude that Professional Services Review Committee had failed to afford medical practitioner procedural fairness – whether the Tribunal erred in failing to conclude that the Committee was bound to use the sampling procedure in ss 106G to 106K of the Health Insurance Act 1973 (Cth) – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal erred in holding that amendments to the Act passed after the relevant conduct increasing disqualification periods were applicable – the Tribunal did not err in any respects alleged.

Health Insurance Act 1973 (Cth) ss 3F, 81, 82, 86, 87, 88, 89, 91, 93, 95, 101, 102, 103, 104, 106G, 106H, 106J, 106K, 106L, 106Q, 106S, 106T, 106U, 106V, 114, 115, 119, 124A

Health Insurance Amendment (Professional Services Review) Act 1999 (Cth) s 65

Health Insurance Amendment Act (No 1) 1997 (Cth) s 4

Acts Interpretation Act 1901 (Cth) s 8

Health Insurance (1995-96 General Medical Services Table) Regulations

Health Insurance Commission v Grey [2002] FCAFC 130   referred to and applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259   referred to

Minister for Health v Thomson (1985) 8 FCR 213   referred to

McIntosh v Minister for Health (1987) 17 FCR 463    referred to

Yung v Adams (1997) 80 FCR 453   referred to and discussed

Determining Officer v Lusink (1998) 79 FCR 433   referred to

Tiong v Minister for Community Services and Health (1990) 93 ALR 308   referred to

Adams v Yung (1998) 83 FCR 248   referred to and discussed

Kioa v West (1985) 159 CLR 550   applied

Webb v R (1994) 181 CLR 41   referred to

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70   referred to

Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277   referred to

Minister for Immigration and Multicultural Affairs v Jia (2001) 75 ALJR 679   referred to

Tankey v Adams (2000) 104 FCR 152   referred to and discussed

Artinian v Commonwealth (1996) 43 ALD 235   referred to

Retnaraja v Morauta (1999) 93 FCR 397   referred to

Sullivan v Department of Transport (1978) 20 ALR 323   referred to

Dennis Willcox Pty Ltd v Federal Commission of Taxation (1988) 79 ALR 267   referred to

Repatriation Commission v Smith (1997) 75 FCR 298   referred to

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24   referred to

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1   referred to

Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707   referred to

Maxwell v Murphy (1957) 96 CLR 261   referred to

Samuels v Songaila (1977) 16 SASR 397   referred to

Bakker v Stewart [1980] VR 17   referred to

O’Neill v Reid [1959] NZLR 331   referred to

Bar Association (NSW) v Evatt (1968) 117 CLR 177   referred to

Peverill v Backstrom (1994) 54 FCR 410   referred to

La Macchia v Minister for Primary Industry (1986) 72 ALR 23   referred to

Re a Solicitor’s Clerk [1957] 1 WLR 1219   referred to

Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856   referred to

A Palmer and C Sampford, ‘Retrospective Legislation in Australia: Looking Back at the 1980s’ (1994) 22 Fed L Rev 217

Malcolm Adams Traill v Ian Stewart McRae

V 677 of 2001

SACKVILLE, KENNY & ALLSOP JJ

16 AUGUST 2002

SYDNEY (HEARD IN MELBOURNE)

On appeal from the President of the Professional Services Review Tribunal

THE COURT ORDERS THAT:

1.      The application by way of an appeal under s 124A of the Health Insurance Act 1973 (Cth) be dismissed.

2.      The applicant pay the respondent’s costs.

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

On appeal from the President of the Professional Services Review Tribunal

REASONS FOR JUDGMENT

the court:

Introduction

The Proceedings

1                     This is an application by Dr Malcolm Adams Traill (Dr Traill) made under s 124A of the Health Insurance Act 1973 (Cth) (the Act) by way of an ‘appeal’, on a question of law only, from a decision of the Professional Services Review Tribunal (the Tribunal) established under s 108 of the Act.  The Full Court was constituted by direction of the Chief Justice under subs 20(1A) of the Federal Court of Australia Act 1976 (Cth) to hear the application in the exercise of the Court’s original jurisdiction.

2                     The Tribunal, in its decision dated 28 May 2001, affirmed a final determination made by the respondent, a Determining Officer appointed by the Minister pursuant to s 106Q of the Act,on 12 October 2000.  In that determination, the respondent directed as follows:

• in accordance with par 106U(1)(a) of the Act, the Director of Professional Services Review (the Director) reprimand Dr Traill in relation to the matters specified in pars 3.2.5, 3.2.6 and 3.2.9 of the respondent’s statement of reasons (being findings that Dr Traill had maintained inadequate clinical records in eight case examples; had billed Item 23 for certain consultations where he had not provided the appropriate level of clinical input; and had failed to take responsibility for the direct bill claims submitted to Medicare on his behalf);
• in accordance with par 106U(1)(b) of the Act, the Director counsel Dr Traill in relation to those matters;
• in accordance with par 106U(1)(c) of the Act, Dr Traill repay to the Commonwealth Medicare benefits in the amount of $1,103.15 in respect of certain specified services rendered to three patients;
• in accordance with par 106U(1)(g)(i) of the Act, Dr Traill be disqualified for a period of three years from the date the determination takes effect ‘in respect of the provision of all services to which an item relates in Group A1 of Part 2 of the General Medical Services Table’ (that is ‘General Practitioner attendances’ to which no other item applies: see Health Insurance (1995-96 General Medical Services Table) Regulations, (the Regulations),Schedule, Part 2).
• in accordance with par 106U(1)(h) of the Act, Dr Traill be fully disqualified for a period of two years.

3                     We should note that Item 23, a level B surgery consultation, was defined by the Regulations to mean a

Professional attendance involving taking a selective history, examination of the patient with implementation of a management plan in relation to one or more problems or professional attendance of less than 20 minutes duration involving components of a service [to which certain other specified items apply].

4                     We should also note that under subs 106V(3) of the Act, the final determination of a Determining Officer does not take effect until any appeal under s 124A has been resolved.  Thus, although the referral of Dr Traill’s conduct to the Director of Professional Services occurred as long ago as 20 March 1997, the directions made by the respondent have not yet taken effect.

5                     In large part the present application concerns provisions of the Act which have now been repealed, but which govern the events concerning Dr Traill.  Section 124A was repealed and the Tribunal abolished by the Health Insurance Amendment (Professional Services Review) Act 1999 (Cth).  Section 65 of the amending legislation, however, preserves the application of the previous legislation to a matter such as the present.

The Legislative Scheme

6                     The Act created a scheme for the payment of medical benefits, known as ‘Medicare benefits’.  Parts VAA and VA of the Act established a regime under which a practitioner’s conduct could be examined to ascertain whether ‘inappropriate practice’ was involved.  The regime provided for action to be taken against a practitioner should such conduct be found and for an administrative structure to undertake the necessary inquiries.

7                     An outline of the structure of Parts VAA and VA of the Act is found in Health Insurance Commission v Grey [2002] FCAFC 130, at [6] to [46], in which the Full Court upheld the constitutional validity of the legislation.  We gratefully adopt that summary and do not repeat it.  It is enough to refer here to some key sections, although it will be necessary to refer to other provisions in the course of the judgment.  We refer to the relevant provisions as though they are currently in force.

8                     Paragraph 82(1)(a) of the Act provides that a practitioner engages in ‘inappropriate practice’ if

the practitioner’s conduct in connection with rendering…services is such that [a Professional Services Review Committee established under s 93] could reasonably conclude that:

(a)               if the practitioner is a specialist – the conduct would be unacceptable to the general body of the members of the speciality in which the practitioner was practising when he or she rendered…the services; …

9                     For the purposes of Part VAA, general medical practice is taken to be a specialty: par 81(2)(a).

10                  The Health Insurance Commission (the Commission) is empowered to refer to the Director the conduct of a person relating to ‘whether the person has engaged in inappropriate practice in connection with rendering of services’: par 86(1)(a).  Any such services must have been rendered within the two year period preceding the referral: par 86(2)(a).

11                  Except in circumstances which do not apply in the present case, the Director must set up a Professional Services Review Committee (the Committee) to consider whether the person under review has engaged in inappropriate practice: s 93.  The Committee must give to the Determining Officer appointed by the Minister a written report setting out its findings on whether the practitioner’s conduct in connection with rendering the referred services was, in its opinion, unacceptable to the general body of general practitioners: par 106L(a).

12                  If the Committee’s report includes a finding that the practitioner has engaged in inappropriate practice in connection with rendering some or all of the referred services, the Determining Officer must make a draft determination and give a copy of the draft to the practitioner, inviting him or her to comment: s 106S.  The Determining Officer must then proceed to a formal determination: s 106T.  The determination must contain one or more of a number of specified directions, including directions for a reprimand, counselling, repayment of Medicare benefits, disqualification from the provision of specified services or full disqualification: subs 106U(1).

13                  A practitioner to whom a determination relates may request the Minister to refer the determination to a Tribunal for review: subs 114(1).  The Minister is obliged by subs 115(1) to forward the request to the President of a Tribunal together with

(a)       a copy of the reference that gave rise to the determination;

(b)       a transcript of the proceedings at the hearing conducted for the purposes of that reference;

(c)        the report on that reference and any documents sent to the Minister with that report; and

(d)                the determination.

14                  Section 119 provides as follows:

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

(a)               shall consider the matter to which the determination relates having regard to the grounds set out in the request, the documents forwarded by the Minister with the request and any addresses made to the Tribunal during the proceedings on the review; and

(b)               shall, subject to subsection (2):

…

(ii)               if the determination consists of a final determination under section 106T – affirm or set aside the determination, or set aside the determination and make any other determination that the Determining Officer is empowered to make under that section.

            …

(3)       If the determination consists of a final determination under section 106T, the decision of a Tribunal on a review is, for all purposes (except for the purposes of this Part), taken to be a determination of the Determining Officer.

The Issues

15                  Dr Traill’s medical qualifications include those of a specialist pathologist.  However, the events with which this application is concerned relate to his undertaking clinical general practice at suburban locations in Melbourne.  Before the Committee and before the Tribunal, a point was made by Dr Traill as to the importance of his being a specialist pathologist.  No such point was sought to be made before us.  Nonetheless, it is important to understand that in explaining his conduct to the Committee on a number of occasions, Dr Traill resorted to the proposition that he was a specialist pathologist, with the qualifications and skills of such a practitioner.

16                  Dr Traill argued before this Court that the Tribunal had erred in a number of respects.  In particular, he relied on the following contentions:

• the Tribunal had erred in failing to conclude that Dr Traill had been denied procedural fairness in the administrative decision-making process prior to the Tribunal hearing;
• the Tribunal had erred in failing to conclude that the Committee was bound to follow the sampling procedures provided for in ss 106G to 106K of the Actand that the Committee was not entitled to make adverse findings about Dr Traill’s conduct without following those procedures;
• the Tribunal had failed to address detailed submissions made on behalf of Dr Traill concerning twenty patients about whose treatment the Committee had made findings;
• the Tribunal had failed to take into account a number of relevant considerations before affirming the disqualifications imposed by the Determining Officer; and
• the Tribunal had erred in holding that amendments effected by the Health Insurance Amendment Act (No 1) 1997 (Cth), which increased the maximum periods of disqualification, were not applicable to inappropriate conduct occurring before the amendments came into force.

17                  Before addressing these arguments, and in particular because of the first two of these arguments, it is necessary to examine the history of the matter in some detail.

HISTORY OF THE MATTER

The Events Leading up to the Referral

18                  On 6 September 1994, Dr Traill was interviewed by a medical adviser of the Commission about aspects of his practice.  One of the subjects of this interview was the volume of services attributable to him and his practice.

19                  The notes of that discussion record an expressed concern of the Commission about the number of patients being seen by Dr Traill.  Dr Traill expressed some expectation that these numbers would decrease in the future, with the movement of patients to doctors who had recently left the practice.  There was a discussion of the Professional Services Review Scheme and Dr Traill was told that practice statistics would be checked, at least at three monthly intervals, ‘to ensure that the Commission’s concerns had been addressed’.  Dr Traill was told that the present concerns had been clarified and that there would be no referral under the Professional Services Review Scheme ‘at this time’.

20                  On five subsequent occasions - 17 October 1994, 18 April 1995, 18 October 1995, 18 April 1996 and 18 October 1996 - Dr Traill received practice statistics from the Commission showing his rendered services to be over three times the number of services rendered by the seventy-fifth percentile of Australian general practitioners.  These were, presumably, the practice statistics to which reference had been made during the meeting of 6 September 1994.

21                  On 17 October 1995, the medical adviser to the Commission who had interviewed Dr Traill in September 1994 attended upon Dr Traill once again, and discussed with him his apparently high volume of services and consultations.  The discussion covered such matters as his long hours of work, his lack of holidays, his usual afternoon and nocturnal shifts, his practice profile, and graphs which illustrated his practice and which showed the volume of certain services to be well above the ninety-ninth percentile of practitioners.  There was discussion with him about statistics which showed that, excluding pathology services, on many days he provided more than seventy, and on some days more than 140, services to patients.  In this discussion, the adviser raised with Dr Traill the criteria developed by the Royal Australian College of General Practitioners (the College) which would have had him working on some days (had he followed their recommended average times for consultations) in excess of twenty hours in a day.  Dr Traill was told that the Commission was concerned about the adequacy of the clinical input that he was providing for individual patients on days when he saw more than seventy, and up to 145, patientsin one day.  The concerns expressed to Dr Traill were explained by reference to, and supported by, data, described in the referral later sent to him as follows:

The concerns were demonstrated with the use of profile data (practice data of Dr Traill held by the Commission), a PIRD (profile of the services provided on a daily basis) and a PSS (overall summary of data held by the Commission relating to Dr Traill).  The operation and functions of the Professional Services Review Scheme were explained to Dr Traill. 

22                  At the 17 October 1995 meeting, Dr Traill was counselled to reduce his total services to below 15,000 per annum (from in the order of 28,000) and to follow the College guidelines for appropriate practice for consultation times.  The following was recorded in the notes of the discussion as having been discussed at the meeting:

The statistics will be monitored in due course (usually 3 months), and then as required.  If Dr Traill does not change his practice as outlined and if the Commission continous [sic] to hold concerns, then the Commission has no option but to refer the practitioner for independent peer group adjudication by the PSRS.  Dr Traill said he understood the Commission’s concerns.  He said he can’t take the necessary action because it is beyond his control to do so.  [Emphasis added.]

23                  Dr Traill was sent a copy of the notes of the discussion of 17 October 1995 and was invited to respond in writing within fourteen days if he wished to do so.  He did respond.  On 1 November 1995, Dr Traill sent a letter to the medical adviser who had spoken to him, about the meeting that they had had and about a letter from Mr Burdett, an officer of the Commission, dated 26 October 1995.  Mr Burdett’s letter was not before us.  Dr Traill’s letter took issue with the approach of the Commission as to length of consultations and laid considerable emphasis on his specialist pathology qualifications.  The letter also drew attention to what Dr Traill saw his duties to be in relation to what he described as ‘priority medicine’.  The letter concluded as follows:

2.      The Nature of my Duties

My Specialist duties may be considered to embrace priority medicine.  Most of my rostered duties are out of normal working hours and a large number of the patients are seeking (what they perceive to be) emergency services.  Such services are, I understand, very favourably received by the community.  A considerable number of the out-of-hours patients indicate that they usually see their ‘proper’ or ‘normal’ doctor for ongoing health matters – a feature confirmed in the low follow-up rate in my figures.  I attend to patients as they turn up, with whatever assistance may be provided by management – if they can find assistant doctors.  I believe I have a legal obligation and moral duty to attend to all patients who attend the clinic seeking medical attention, and that the clinic must be emptied of patients as soon after closing time as possible – and that is what I do. 

Accordingly, if the HIC wishes to assess my duties on a Peer Review basis, my criteria should be assess [sic] relevant to Specialist Physicians (Pathology) working out-of-hours priority medical services.  I do not believe Specialists should have their duties and responsibilities compromised by the HIC responding to fiats from a General Practice organization.

[Emphasis in original.]

24                  On 12 September 1996, the Commission wrote to Dr Traill informing him that it had decided to recommend that his conduct be referred to the Director.

25                  On 20 September 1996, Dr Traill wrote to Mr Burdett a short letter which reflected some disagreement with the contents of the notes of the discussion dated 17 October 1995.

The Referral by the Commission

26                  On 20 March 1997, acting under subs 86(1) of the Act, the Commission made a referral to the Director to review the conduct of Dr Traill in relation to whether he had engaged in inappropriate practice, in connection with the rendering of services. 

27                  Subsection 88(1) of the Act required the Commission to provide Dr Traill with a copy of the referral within forty-eight hours of sending it to the Director.  There was no suggestion that this was not done and, accordingly, we would infer that Dr Traill was provided with a copy of the referral in about late March 1997.  Subsection 88(2) required that the copy of the referral sent to Dr Traill be accompanied by a notice inviting him to make written submissions to the Director, within fourteen days, as to why the Director should dismiss the referral without setting up a Committee.  Again there is no suggestion that this notice was not provided to Dr Traill.  Dr Traill does not appear to have taken the opportunity, at this stage, to put any submissions to the Director. 

28                  The referral was over 400 pages in length. It began in section A by formally stating the referral.

29                  The ‘referred services’ were described in section B of the referral as follows:

For the purposes of section 87(1) of the Act, this referral relates to services rendered by Dr Traill from his practice locations in the State of Victoria during the period of 1 July 1995 to 30 June 1996, inclusive.

30                  Later in the referral, in section K, under the heading ‘Referred Services’, the following was stated:

All Medicare services rendered by Dr Traill at his practice locations in the State of Victoria during the referral period.

31                  The front page of the referral mentioned eight practice locations, including a practice at Kingsbury and a practice at Mill Park in Victoria.  In section D (see [33] below) it was said that Dr Traill had advised that his two ‘main locations’ were Kingsbury and Mill Park.

32                  Under the heading ‘C.  Reasons for the Decision to Refer’ the following appeared:

The Health Insurance Commission is concerned that Dr Traill may not be able to provide an appropriate level of clinical input when consistently rendering such a high volume of level B consultations (item 23).

1.      High Volume of level B consultations  (item 23):

In the referral period 1 July 1995 to 30 June 1996, Dr Traill provided 20,541 level B consultations (item 23).  This places Dr Traill above the 99^th percentile for level B consultations (item 23) when compared to all other general practitioners in Australia.  The Health Insurance Commission believes that the appropriate level of clinical input may not be able to be maintained at this servicing rate on a regular and continuing basis.

For this reason, the Health Insurance Commission has formed the view that Dr Traill’s conduct in connection with the rendering of level B consultation items may constitute inappropriate practice.

[Emphasis in original.]

33                  Section D was entitled ‘Background of Dr Traill’ and contained, as its title would suggest, material concerning Dr Traill, his qualifications and his practice history.

34                  Section E, entitled ‘Health Insurance Commission Assessment’, identified five criteria against which Dr Traill’s practice had been assessed in considering the ‘possible inappropriateness of Dr Traill’s practice’:  (a) the servicing patterns of all active vocationally registered general practitioners in Australia;  (b) the findings of a survey of general practice in Australia in 1990 to 1991;  (c) the findings of a survey of general practitioners conducted by the College in 1995;  (d) the entry standards for accreditation for general practice developed and adopted by the College; and  (e) published research by eminent practitioners which suggested that consultation time was a reasonable proxy measure for relative work value in Australian general practice.  Against those criteria the referral stated the following (using the same lettering):

(a)               In terms of the consultations rendered annually, Dr Traill provides substantially more level B consultations (item 23) (20,541) than 99% of all active vocationally registered general practitioners in Australia (14,374).

(b)               In this survey, practitioners categorised as busy full-time averaged 182 consultations per week with 4% of practitioners providing more than 200 consultations per week including home visits.  This compares with Dr Traill’s average consultations of 396 per week.

(c)               In this survey the general practitioners (1,078) spent on average 39 hours per week in contact with patients and worked 55 hours per week.  The average number of services per year was 6,532 and the length of a consultation was approximately 17 minutes, which is an increase in the RACGP Interpractice Comparison Surveys conducted over the past five years.

            …

(d)       (Standard 1.1) All patients are able to obtain timely care and advice appropriate to their needs.

It is the view of the Health Insurance Commission that it would be very difficult for Dr Traill to provide care and advice appropriate to patients’ needs when they are seen at such a high daily rate.

(Criterion 1.2.2) Consultation times are long enough to allow quality care.  This means that average times are not less than 10 minutes [except in exceptional circumstances]. Actual times for individual appointments vary according to clinical need.

With 196 days on which more than 80 services per day were provided, the Health Insurance Commission is concerned that Dr Traill may not be able to meet this criterion.

 (e)      The high volume of level B consultation items provided by Dr Traill would necessitate shorter consultations, and in the view of such research, clinical input of lower quality.

35                  Section E also included the report of interview of 17 October 1995, Dr Traill’s response of 1 November 1995, his letter of 20 September 1996, and tables showing the break-up of the composition of Dr Traill’s practice.

36                  Section F was entitled ‘Details of Health Insurance Commission Concern’.  This dealt predominantly with the ‘high volume of level B consultations (Item 23)’.  The section contained a variety of statistics concerning Dr Traill’s practice, and in particular concerning Item 23, level B.

37                  Section G was entitled ‘Other Details of Dr Traill’s Practice’ and contained information about ‘flow-on’ costs generated by Dr Traill’s practice, and about the percentage of services by bill type.  Section H contained a chronology.  Section I referred to relevant legislative provisions.  Section J had a list of definitions, which included (contrary to Dr Traill’s submissions) a definition of ‘clinical input’ as follows:

Clinical Input     means an approach to common and serious conditions which is broadly consistent with approaches adopted by the wider profession.

38                  Section K contained a summary of the referred material.  There were various enclosures to the referral.  These included copies of the interview reports; the material referred to, and used in, analysis in the referral; and various statistical reports on his practice.  The statistical reports, which were not before us, were listed in the index to the papers as follows:

Report 1 – Daily item report – PIRD                                                05.02.1997

Report 2 – Monthly item report – PIRT                                            05.02.1997

Report 3 – Top 40 multiple servicing report                                     05.02.1997

Report 4 – Estimated time report – P/Time                                      05.02.1997

Report 5 – Pharmaceutical benefits report                                      29.01.1997

Report 6 – DI, Pathology and Specialist Referral Reports               Undated

39                  The various reports there identified were not explained, or resorted to, by either party to theproceedings in this Court.

40                  It should be noted that Dr Traill did not challenge the validity of the referral.  Nonetheless, his counsel submitted that the concern expressed in the referral was one of ‘obscure generality’.  In the light of events from 1994, and from reading the referral ourselves, we see no obscurity at all in the concerns of the Commission.  Whether the concerns were justified was, of course, the subject of the investigation by the Committee.  It was also submitted that all Dr Traill knew as to the Commission’s concerns was what was in the referral.  This was simply not the case, as the chronology from 1994 demonstrates.

The Director Sets up the Committee

41                  Under s 89 of the Act the Director was obliged within twenty-eight days of receiving the referral either to dismiss the referral (for either of the reasons set out in ss 91 and 92 of the Act, which included (s 91) the lack of sufficient grounds to support the referral) or to set up a Committee to consider the question whether the practitioner had engaged in inappropriate practice.  There is no evidence as to when the Director received the referral.  But it appears to be undisputed that the Director, in setting up the Committee (under ss 93 and 95 of the Act) on 6 August 1997, did so well outside the twenty-eight day period referred to in s 89.  The Committee was constituted by three persons who, in accordance with s 95, were medical practitioners, two of whom were vocationally registered general practitioners (as to which latter phrase, see s 3F of the Act).  The delay by the Director in the setting up of the Committee did not affect the validity of the setting up of the Committee: subs 89(2) of the Act.

The Committee Gives Notice of a Hearing

42                  After considering the referral, it appeared to the Committee that Dr Traill may have engaged in inappropriate practice and so the Committee was obliged to hold a hearing: subs 101(2) of the Act.  On 10 September 1997, in compliance with s 102 of the Act, the Committee sent Dr Traill a notice of hearing to be held on 1 October 1997.  (In submissions, for reasons that are not clear, counsel for Dr Traill referred to the notice as a ‘purported’ notice.)  Subsection 102(3) of the Act required that that notice give ‘particulars of the matter to which the hearing relates’.  The notice gave the following particulars:

This referral concerns your conduct in relation to whether you have engaged in inappropriate practice as defined by the Health Insurance Act 1973 in connection with the rendering of those services described below.

As detailed in the referral, for the purposes of section 87 of the Act, the referral relates to all services rendered by you during the referral period, from your practice locations in the State of Victoria. [Emphasis added.]

Thus, the particulars given under subs 102(3) were the matters ‘detailed in the referral’.

43                  The notice required Dr Traill to appear at the hearing and give evidence to the Committee and to produce documents referred to in a schedule and in the various attachments to the schedule.  The Committee was empowered by s 104 of the Act to require Dr Traill to attend a hearing, produce documents and give evidence.

44                  The letter of 10 September 1997, enclosing the notice of hearing, invited Dr Traill to provide the Committee with the following information:

·           your curriculum vitae, including particulars of your experience in the profession;

·           a brief description of your practice, its clientele and any special professional interests relevant to your practice; and

·           any additional material you believe may be relevant to the matter now before the Committee.

45                  The letter also outlined the procedure to be undertaken at the hearing.  The letter indicated that the documents called for in schedule 1 of the notice (referred to in [43] above, and to which reference is made in [47] to [55] below) and the documents summonsed from the two medical centres at which Dr Traill carried on practice (Kingsbury and Mill Park) would be ‘tendered into evidence’.  Dr Traill was provided with copies of those summonses.  The following was also stated in the letter:

You will be asked to provide details of your professional training and experience.  Among other things, the Committee will be interested in:

·           your practice arrangements, ie type of practice/patients, staffing, financial & clerical arrangements;

·           your high volume of rendered services, particularly level B consultations;

·           absences from the practice, including holidays; and

·           your understanding of your professional responsibilities under the Medicare programme. [Emphasis added.]

The Committee will also seek your views of the referral and the matters the HIC took into consideration in forming its view that your conduct in connection with the rendering of level B consultations may constitute inappropriate practice.  [Emphasis in original.]

….

Would you please advise me if you are to be accompanied at the hearing and if so, by whom and in what capacity (legal, medical, other adviser or friend).  If you intend to have evidence given by witnesses other than yourself, notice of that intention (and the names and nature of the proposed testimony) must be given to me as a matter of urgency and no later than 72 hours prior to the hearing.

In closing, I would like to assure you that the Committee will endeavour to conduct this inquiry in a fair manner without undue formality.  It is intended that proceedings be more in the form of a professional discussion.

46                  Stopping at this point, and before coming to schedule 1 to the notice, there cannot have been the slightest doubt in the mind of Dr Traill (who had been in possession of the referral since March 1997), or any reasonable practitioner in his place, that the primary subject of the Committee’s inquiry was its concerns (being the concerns previously expressed to him by the Commission) as to the number of patients Dr Traill was seeing and the number of services he was undertaking, especially Item 23 (level B), and as to whether he could be providing an appropriate level of clinical input (that is, appropriate medical treatment) to his patients, given the number of patients he was seeing.  These concerns had been explained to him in 1994 and 1995.  In 1994, he had been able to allay the concerns, partly no doubt because of his expressed expectation, at that time, that he would treat fewer patients in the future (see [19] above).  In 1995 he had told the Commission that he understood the concerns (see [22] above).  The concerns were again made clear in the referral, as was the professional foundation for them.  It is wrong to describe, as counsel for Dr Traill did, the concerns in the referral as being of ‘obscure generality’.  It may be that by investigating the circumstances of particular patients and their treatment from Dr Traill’s practice the Committee’s concerns would be heightened or reduced, or given more specific exemplification; but the nature of the perceived problem was, and had been for some time, put squarely and clearly to Dr Traill.

47                  Schedule 1 of the notice of hearing dated 10 September 1997 made certain calls for documents from Dr Traill.  The first call was as follows:

All documents relating to the services rendered by Dr Malcolm Adams Traill during the Referral Period to the patients on the attached lists

(Attachments A, B and C)

48                  Attachment A to schedule 1 had a list of ninety-one patients by full name, address, date of birth, sex, date of service (all being on 6 July 1995) and item (all being Item 23).

49                  Attachment B to schedule 1 had a list of eleven patients, similarly identified, concerning Item 23 services apparently rendered on 5 November 1995 at ‘Practice Location M’.

50                  Attachment C to schedule 1 had a list of 102 patients, similarly identified, concerning Item 23 services apparently also rendered on 5 November 1995 at another practice location.

51                  The second call in schedule 1 was as follows:

All documents relating to the services rendered by Dr Traill during the Referral Period to the patients numbered 1, 3, 8 and 11 on the attached list (Attachment D)

-            these are patients taken from the Top 40 PIRT Report in the Referral.

52                  The four patients there referred to were identified in attachment D by reference to name, address and date of birth.  They were taken from the list of the forty most heavily serviced patients in the period.

53                  The third call in schedule 1 was as follows:

All documents relating to the services rendered by Dr Traill during the Referral Period to the patients on the attached list (Attachment E)

-            these are the patients ranked 1 to 12 (inclusive) in the Multi Servicing Report in the Referral.

54                  The patients referred to in this call were identified by name and address.

55                  The fourth and fifth calls in schedule 1 were in the following terms:

·           All Dr Traill’s Royal Australian College of General Practitioners’ Quality Assurance and Continuing Medical Education records for the triennium which covers the Referral Period.

·           All practice appointment books, day books, diaries and attendance registers for:

             The Referral Period:  1 July 1995 – 30 June 1996.

56                  Dr Traill was provided with a copy of two summonses to produce documents served on the practice managers of the two locations of the Premier Care Medical Centre at Kingsbury and Mill Park where Dr Traill worked during the referral period.  The summons in respect of the Kingsbury location sought the following:

All documents relating to the services rendered during the Referral Period (1 July 1995 – 30 June 1996) to the patients on the attached lists (Attachments A, B, D and E).

57                  Attachments A and B there referred to were the same as attachments A and B to the notice of hearing given to Dr Traill ([48] and [49] above).  Attachment D was different in form to attachment D to the notice of hearing given to Dr Traill, but was identical in effect, listing the names and addresses of the four patients identified in the latter document ([51] and [52] above). Attachment E was the same as attachment E to the notice of hearing given to Dr Traill ([53] above).

58                  The summons in respect of the Mill Park location sought the following:

All documents relating to the services rendered during the Referral Period (1 July 1995 – 30 June 1996) to the patients on the attached lists (Attachments C, D and E).

59                  Attachment C was the same as attachment C to the notice of hearing given to Dr Traill ([50] above).  Attachments D and E  were the same as attachments D and E to the summons to Kingsbury ([57] above).

60                  There was no suggestion before us that the requirement that Dr Traill produce these records was oppressive. 

61                  In the light of the calls for documents, which the correspondence made plain would be placed into evidence, Dr Traill was put on notice that the issue referred to in [46] above would be investigated, with particular reference to the patients identified by the various calls.

The Hearing Before the Committee

62                  On 1 October 1997, the Committee conducted a hearing which Dr Traill attended.  Dr Traill was entitled to attend the hearing with a lawyer, although the lawyer could not represent him at the hearing: subs 103(1).  Dr Traill chose to appear at the hearing unaccompanied by anyone.  The hearing commenced at 9.34 am and concluded at 4.08 pm.  A transcript was taken, which was before us. 

63                  At the commencement of the hearing the Chairman said the following to Dr Traill:

This committee will be concerned with whether your conduct in connection with the rendering of services attracting Medicare benefits would have been considered unacceptable by the general body of general medical practitioners in Australia.

…[w]hile we will try to conduct this hearing as informally as possible, the Act makes it a criminal offence for you to knowingly give a false or misleading answer to a question or produce a document containing a false or misleading statement which you do not tell us is false or misleading.

…

The general plan for this hearing is as follows:  I will shortly have certain documents before the committee tendered in evidence.  Please note that you are welcome to view any of those documents at any time.  I will then ask you some questions, and I would like to state at this point that our main concerns are your high volume of rendered services within the referral period.  Following this hearing, the committee must report its finding to a determining officer appointed by the Minister.  A copy of the report will be given to you by the determining officer. 

If the report contains a finding that you have engaged in inappropriate service in connection with the rendering of services, the determining officer is required to make a determination containing directions as set out in section 106U of the Act.

[Emphasis added.]

64                  The officer assisting the Committee then placed into evidence, amongst other things, the referral and the clinical records supplied by the two practices in response to the summonses.

65                  There was also placed into evidence before the Committee a letter from Dr Traill dated 26 September 1997, sent in response to the invitation contained in the Committee’s letter of 10 September 1997 ([44] above).  Dr Traill’s letter and its annexures comprised over ninety pages and together comprised a detailed submission on the referral.  The comments of the Tribunal (two of the three members being medically qualified) upon the letter of 26 September 1997 are worthy of note:

…The applicant’s letter and its attachments comprised some 90 pages.  Included was a formulation of what the applicant regarded as basic issues and some 190 questions by which he sought to interrogate the Committee.  Although many of the questions were argumentative and others irrelevant to any issue that the Committee had to determine, the nature and content of the questions demonstrates that the applicant was familiar with the contents of the referral document and its attachments and was well aware of the subject matter to be investigated at the proposed hearing by the Committee.

[Emphasis added.]

66                  It was put to us that Dr Traill was, in effect, led to believe that the hearing was capable of characterisation as an informal professional exchange.  Counsel submitted that it was no more than ‘a chat around the table between doctors over a year’s practice’; that the informality and tone of the hearing was such as to foster the making of ‘casual’ remarks by Dr Traill which were said to have been ultimately (and implicitly, unfairly) held against him; and that this air of informality contributed to a fatal lack of focus in the way the hearing was conducted.  In the light of the history of the matter up to 1 October 1997 and the manner in which the hearing was introduced we do not think that prior toor on that date Dr Traill could have been under any misapprehension about the seriousness of the inquiry or about the central matter the subject of the inquiry to which we have referred.  The fact that Dr Traill was under no such misapprehension is reflected in the detailed letter of 26 September 1997 that he produced at the hearing.  It should be noted that Dr Traill did not seek, by affidavit or oral evidence before us, to establish that he did not understand the nature of the hearing before the Committee; that he had not understood what the Committee intended to do; or that by the way the hearing was conducted he had been lulled into a belief that what was occurring was somehow neither serious nor an occasion warranting his close attention and considered evidence.

67                  During the hearing before the Committee, Dr Traill was questioned about, amongst other things, his hours of practice, the nature and organisation of his practice, his responsibilities under the Medicare system and his understanding of Item 23.  He was asked about the average length of a consultation conducted by him.  Given the history of the matter, Dr Traill could not have misunderstood the centrality of this inquiry.  He said:

… I would say it is overall over a year I would think the average is in the order of about a bit longer than eight minutes.

68                  When asked whether the length of consultation would be any different at Mill Park, he said that the length of consultation was generally the same there, though on very busy days consultations fell to six minutes.  Dr Traill was also asked and gave evidence about his habits, his practices and his attitudes to treatment.  He was also asked about certain specific patients and their treatment. 

69                  A little over one week after the hearing, Dr Traill sent the Committee a letter (dated 9 October 1997) containing additional comments, as well as questions in respect of which Dr Traill sought answers from the Committee.

A Draft Report of the Committee Is Provided to Dr Traill

70                  Under cover of letter dated 28 August 1998, the secretary to the Committee provided Dr Traill with a copy of the report of the Committee.  It was not expressed to be a draft, but the letter from the secretary was substantially to that effect, stating as follows:

In order to ensure that you are fully appreciative of the concerns of the Committee and that you are given every opportunity to respond to those concerns, the Committee has asked me to provide you with a copy of this report before it is sent to the Determining Officer.

If you have any comments on the report or any further submissions you would like to make, please forward them to me in writing before 5.00 pm on 22 September 1998.  The Committee will then consider these and may modify the report before sending it to the Determining Officer.  The Determining Officer will then give you a copy of the Committee’s final report as required by section 106R of the Health Insurance Act 1973. [Emphasis in original.]

71                  On 18 September 1998, solicitors acting for Dr Traill sent the following letter to the Secretary of the Committee.

We act for Doctor Traill in this matter and have been handed your letter dated 28^th August, 1998 and draft report therewith.

We note that the draft report issued some 11 months after the hearing and, having only recently been instructed to act, we simply have insufficient time to consider all the relevant material and respond to you prior to the dead line of 22^nd September, 1998.  Therefore we ask for this time to be extended for 2 months. 

We also request the following:

(a)      A full transcript of the hearing.

(b)      The proposed attachments to the report.

(c)       A reply to our client’s letter dated 9^th October, 1997.

We thank you in anticipation of your co-operation and await your reply.  [Emphasis added.]

72                  On 25 September 1998, the Secretary of the Committee responded to this letter on behalf of the Committee.  In it, he declined to answer Dr Traill’s questions contained in Dr Traill’s letter of 9 October 1997, referred Dr Traill’s solicitors to the official transcript providers to obtain a transcript and noted that Dr Traill had the proposed annexures to the report.  As to the request for two further months for additional submissions, the Committee agreed to one further month.

73                  There were no additional submissions provided on behalf of Dr Traill.  No further request for any extension of time to provide additional submissions to the Committee was made.  No complaint was made by Dr Traill or his solicitors about the genuineness of the offer by the Committee, through the Secretary, contained in the letter of 28 August 1998, to receive and consider further material.

74                  By letter dated 27 November 1998 the Secretary to the Committee provided the report of the Committee to the Determining Officer (the Report).  The Report was signed on 26 November 1998.

The Contents of the Report

75                  The Report was in substance the same as the version sent to Dr Traill for his comments.  It also contained the following in connection with the conduct and history of the matter:

At the hearing, Dr Traill was invited to address the Committee at any time and to request an adjournment if one was required at any stage during the hearing.

…

Following the hearing, the Committee provided a draft report to Dr Traill inviting him to make any final submissions on it.  Following a request from solicitors representing Dr Traill for an extension of time in which to lodge submissions, the Committee granted a one month extension.  However, no submissions were received.

76                  The Report commenced by setting out the history of the referral and the procedures adopted.  It set out Dr Traill’s training and qualifications.  It summarised his practice and included the following observations:

Practice Organisation, Facilities and After Hours Services

At the two Premier Care centres, Dr Traill advised that he used primarily one room, did his own dressings, etc., and made little use of the practice nursing staff.  During the hearing, he stated that he found the nursing staff to be ‘more decorative than [having] any other major function’.  During the Referral Period after hours services at the two centres were directed to a locum service.

Types of patients

Dr Traill stated that the patients he saw were ‘predominantly below 50 and by and large there are not a huge number of people with chronic illnesses… so the vast majority of patients… come in with a particular problem at the time for a quick fix, if you like, particular[ly] out of hours.’  He stated: ‘Most of the patients I see are probably out of standard working hours… they’re transients.  They’re patients who come in for something because their normal doctor is closed’.

77                  The Report noted Dr Traill’s long working hours.  It noted the high level of servicing undertaken by Dr Traill by reference to the statistics readily available in the referral.  The Report then described the evidence upon which the findings were based:

1.        All material contained in the Referral.

2.        All oral evidence given at the hearing.

3.        All material tendered into evidence at the hearing, including the medical records for patients seen by Dr Traill at the Premier Care Medical Centres at Kingsbury and Mill Park:

·          on 6 July 1995 and 5 November 1995;

·          the records for three patients who were among Dr Traill’s most heavily serviced patients during the Referral Period; and

·          the records for the members of the 12 highest most heavily serviced families during the Referral Period.

(NB:  The Committee did not proceed in accordance with the formal sampling processes referred to in section 106H of the Act).  However, the Committee did not limit its examination to services provided on any particular day, but rather considered Dr Traill’s treatment of patients throughout the Referral Period.

4.        The ‘Entry Standards for General Practitioners of the Royal Australian College of General Practitioners’.

[Emphasis added.]

The emphasised passage above is relevant to the complaint (dealt with later) that the Committee and the Tribunal erred in dealing with the matter other than by using the ‘formal sampling process’ in Subdivision C of Div 4 of Part VAA of the Act.

78                  The Report then turned to a consideration of Dr Traill’s conduct.  It commenced by referring to the concerns that had been identified in the referral and in the communications with Dr Traill prior to the referral, to the effect that Dr Traill:

…may not be able to provide an appropriate level of clinical input when consistently rendering such a high volume of Level B consultations (MBS item 23).

79                  The substance of the Report dealt with this concern under six headings:

(a)           the high volume of servicing;

(b)          Dr Traill’s assessment of patients as ‘transients’ and himself as a ‘locum tenens’;

(c)           Dr Traill as a general practitioner and specialist pathologist;

(d)          the treatment of patients by unproven methods – the use of lithium;

(e)           billing arrangements:  Medicare vouchers; and

(f)            Dr Traill’s submission to the Committee dated 26 September 1997.

80                  We deal with these sections in turn.

the high volume of servicing  (see [79(a)] above)

81                  The first and fundamental conclusion of the Committee was that Dr Traill had not given adequate and appropriate care to his patients, a failure which had been brought about by the habitual shortness of his consultations.  This conclusion was drawn in part from the Committee’s view of Dr Traill’s own evidence and from the medical records examined.  The Report stated the following:

When questioned regarding his attitude to providing such a high volume of services he stated that he had found it difficult when he was under pressure at Mill Park on a Sunday and had provided 6 minute consultations.  He stated:  ‘I am not terribly happy when I get faster than eight minutes.  But when you are by yourself and a jumbo jet lands in the car park… you cannot turn them away’.

However when queried as to how many patients per hour he would ideally see, he stated:  ‘I start getting bored if it is less than eight an hour, much less than eight an hour.  I would start doing my CME points and reading – that sort of thing’.

The Committee considered that this indicated that Dr Traill considered he could provide appropriate care at this consultation rate.  This was despite the counselling from the HIC’s Medical Adviser, the high volume of work forced on him and his failure to indicate to the centres’ administrators the pressure he was under.  Nevertheless, he considered he could provide adequate and appropriate care at this rate of consultations, not only hour after hour, but day after day, week after week.

That adequate and appropriate care was not achieved was in the Committee’s opinion demonstrated during discussions with Dr Traill and examination of the medical records.

[Emphasis added.]

82                  These conclusions reflected the professional views of the Committee that a practice of consultations lasting from six to eight minutes was inadequate to provide adequate clinical input for his rendered services, particularly level B services.  This view, the Committee said, was demonstrated ‘during discussions with Dr Traill and from an examination of the medical records.’ 

83                  The Committee then provided ‘[its] specific concerns and patient examples’.  The specific concerns were dealt with under two headings:

(a)      ‘Inadequate Clinical Input and Management of Patients:  General’; and

(b)      ‘Inadequate Medical Records:  General’.

84                  As to the first of these matters, the Committee concluded that Dr Traill did not provide adequate clinical input because of his lack of follow-up of patients and that he provided what the Report referred to as:

… symptom oriented medicine in that he initiated treatment for a condition but made no effort to follow it up, monitor progress and, if necessary, adjust medication.

85                  The Committee concluded as follows in this respect:

…This lack of adequate clinical management demonstrated flaws in Dr Traill’s assessment and management of conditions presented to him and did not demonstrate the standard of care expected of a general practitioner.

The Committee considered that the pressure of large numbers of patients waiting to be seen by him was one factor which may have prevented Dr Traill from providing sufficient depth of clinical input with regard to content, detail and patient management in regard to many of his consultations.  For example, Dr Traill informed the Committee that he worked 11 hour shifts on Sundays without a break, seeing between 85 and 90 patients, and with only reception staff to assist him with secretarial duties.

86                  These conclusions were based significantly on Dr Traill’s own evidence.  The Committee said:

During the hearing, Dr Traill stated ‘as far as I am concerned I do what is necessary at the time to solve their particular problem of the time.  If they want to come back and see me at another time well that is their business’.  When asked if, therefore, he did not direct the continuing management of the patient to himself, he answered ‘it is not my habit to do so.’

87                  As to the second matter, the adequacy of medical records was seen as an essential component of providing adequate clinical input.  The Committee identified a number of important defects in Dr Traill’s record-keeping.

(a)            …Dr Traill did not record details of past history, present and previous medications, allergies and sensitivities, or relevant family history for the majority of patients he consulted for the first time.

(b)            …Dr Traill generally did not record details of the presenting problem, for example, the mechanism of a shoulder injury or the circumstances of a facial injury requiring suturing.

(c)            Dr Traill ordered pathology tests but normally only signified this on the patient record as ‘Path’, and he gave no further details as to the nature of, or reasons for, the tests.

(d)            Dr Traill used his own personal shorthand and considered his colleagues could, with the assistance of an explanatory ‘decoding’ sheet he had provided to each of the centres, identify what had occurred.

88                  These conclusions were drawn by the Committee from examination of the records produced and answers given by Dr Traill when questioned. 

89                  The Committee noted particularly the unsatisfactory nature of these aspects of his record-keeping in a practice staffed by a number of doctors.

90                  It should be noted that the Committee’s concerns as to the state of the records were not communicated to Dr Traill until he was questioned at the hearing.  The Committee, of course, had not seen the records until they were produced pursuant to the summonses.  Moreover, the Committee’s concerns were recorded in the draft report provided to Dr Traill.

91                  Eight specific patients were discussed as examples of poor records and inadequate management and follow-up.  The Report stated:

The following are specific examples of what the Committee encountered, where lack of adequate medical records had a negative impact on what the Committee views as adequate patient follow-up or where an unsatisfactory level of clinical input and management was apparent.  The Committee considers that Dr Traill’s conduct in respect of each of these cases would be unacceptable to the general body of medical practitioners in general medical practice.

92                  It is unnecessary to discuss these patients in any detail.  Suffice it to say that the criticism expressed flowed from the records in evidence and Dr Traill’s evidence about these patients.  The Committee concluded about these eight patients:

The Committee finds that Dr Traill’s conduct in relation to the clinical input into the above services, that is, his management of the above mentioned patients would be unacceptable to the general body of medical practitioners in general medical practice.

Dr Traill’s assessment of patients as ‘transients’ and himself as a ‘locum tenens’ (see [79(b)] above)

93                  The Committee recorded what it described as Dr Traill’s concept of general practice:

During the hearing, Dr Traill talked about his concept of general practice.  He stated:

‘You’ve got to look at the type of shifts I’m doing.  What’s normal to you and what’s normal to me are probably quite different.  Most of the patients I see are probably out of standard working hours… they’re transients.  They’re patients who come in for something because they’re [sic] normal doctor is closed and they can’t get into [sic] see him or her or they’ve run out of their Pill so they come in 9 ‘o’clock at night for a new prescription for the Pill and you start raising things like, ‘have you had a Pap Smear or not’ they tend to regard you as a dirty old man sometimes.

94                    The Committee commented on Dr Traill’s concept of general practice:

The above statement encapsulates and exemplifies Dr Traill’s general attitude towards his own clinical practice at the Premier Care Centres which the Committee encountered again and again during the hearing.  That is, he was a locum tenens only and, therefore, his responsibilities to his patients were different from those of the normal GP.

95                  The Committee concluded as follows:

The labelling of patients as transient seemed to the Committee to be a device used by Dr Traill to justify a low level of clinical input, a lack of adequate record keeping, and an unsatisfactory approach to patient management in terms of follow-up of diagnoses and treatment.

96                  This conclusion was drawn from questioning Dr Traill during the hearing about the matter of identified concern:  how he could provide his patients with adequate medical treatment, that is clinical input, given the number of patients he was seeing.  The Committee’s conclusion concerning ‘transient’ patients also provided an important factual underpinning for the view expressed in the Report as to the deficiencies in Dr Traill’s approach to the treatment of his patients.  As a conclusion, it was based on Dr Traill’s own evidence and was exemplified by specific material concerning patients that was before the Committee.  It was not a conclusion which involved or necessitated any form of statistical analysis or extrapolation.

Dr Traill as a general practitioner and specialist pathologist (see [79(c)] above)

97                  The Committee then dealt with a matter of particular concern to Dr Traill: his position as a specialist pathologist.  He claimed that the Committee was not made up of his peers.  As we have noted, this contention was not maintained before us.  Nonetheless, it is necessary to say something about it, since Dr Traill advanced the argument to the Committee and used it to justify his approach to some clinical issues. 

98                  The Committee, which was aware of Dr Traill’s qualifications and experience,  rejected his claim that he had qualifications as a specialist physician.  The Committee considered that his conduct in claiming on Medicare for what he said were referred pathology services was a matter of concern, but viewed it as outside the scope of the referral.  The Committee, however, noted that claims for any specialist pathology referrals which Dr Traill had made inappropriately would only add to the number of Item 23 consultations.

99                  The Committee then turned to the use of Item 23.  At this point the Committee returned to the evidence of Dr Traill and his habits as to length of consultations.  The Committee made the following important findings:

Dr Traill stated at the hearing that if he saw fewer than 8 patients an hour he tended to become bored.  The Committee noted that 8 patients an hour equated to seven and half minutes per consultation.  Allowing for the fact that Dr Traill tended to use a single room and moved his own patients in and out of the room, the Committee formed the view that the time Dr Traill actually spent in clinical consultation with a patient would average less than 7 minutes.  This would not allow for what normally would occur in that type of consultation (history taking, examination, reaching a diagnosis, forming a management plan, discussion and treatment).  Furthermore, on 1659 occasions Dr Traill, in addition to billing an Item 23, billed MBS item 73915 for collection of a specimen for pathology services.  The Committee considered that the collection of a pathology specimen would take between 1-2 minutes of the consultation time, and would further compromise his ability to do a proper Item 23 consultation, given the average time frame of 7 minutes for Dr Traill’s consultations.  It formed the view that on many occasions an Item 3 rather than an Item 23 should have been claimed.

Because of the limited number of records examined by the Committee it has only been able to identify the specific services detailed above and is unable to extrapolate from these to a specific number or proportion of Level B services rendered by Dr Traill during the Referral Period.  The Committee considers that Dr Traill’s conduct in billing Item 23 where the time actually spent with the patient would not enable the necessary elements of an Item 23 service to be carried out would be unacceptable to the general body of medical practitioners in general medical practice.

100               It is important to appreciate that the material relied on by the Committee in drawing these conclusions included Dr Traill’s own evidence as to how long he habitually saw patients.  To that evidence the Committee applied its expertise and an examination of such records as it had.  The Committee recognised that it could not extrapolate statistically from the limited records available. However, Dr Traill’s evidence and other material before the Committee were well sufficient, without the need for any statistical extrapolation, to allow it to make the findings it did.

101               The Committee then proceeded to give three specific examples, said not to be exhaustive, of:

… what the Committee encountered during its examination of the medical records and its discussions with Dr Traill.

102               It is unnecessary to descend to the individual detail of these patients or their treatment, beyond stating the conclusions that were reached by the Committee in respect of each:

(a)          As to the first patient:

The Committee formed the view that the content of all of these consultations (except the initial attendance on 14 May 1996) did not demonstrate the necessary elements of a Level B consultation.

The Committee considers that Dr Traill’s conduct in billing Item 23 for the consultations on 16 May and 25 May 1996 for which there was no entry on the patients’ [sic] medical record, and the consultations on 19, 21, 23 and 28 May 1996, and 2, 6, 11, 16, 20, 23, 27 and 30 June 1996, would be unacceptable to the general body of medical practitioners in general medical practice.  An Item 3 should have been billed for these services.

(b)          As to the second patient:

The Committee was of the view that the four ‘consultations’ on 26 May and 2, 16, and 30 June 1996 were unnecessary and did not warrant a Medicare benefit.  Dr Traill’s conduct in claiming an Item 23 on each of these occasions would be unacceptable to the general body of general practitioners.

(c)          As to the third patient, who had pethidine administered to him on a significant number of occasions:

In the Committee’s opinion such a service did not warrant the billing of an item 23 consultation and concluded that 84 of these attendances did not warrant an Item 23 (see Attachment 3 for details of the specific services).  An Item 3 would have been the appropriate service item.

103               In relation to these three specific patients the Committee further concluded:

The Committee considers that Dr Traill’s conduct in billing Item 23 for the specific consultations referred to above where Dr Traill had not provided the level of clinical input would be unacceptable to the general body of general practitioners.

the treatment of patients by unproven methods – the use of lithium (see [79(d)] above)

104               The Report then moved to a subject matter that ‘gravely concerned’ the Committee: the administration of lithium to patients for hepatitis C, multiple sclerosis and cancer.  The Committee stated that this was ‘not strictly within the terms of the referral’.  In so expressing the matter, the Committee perhaps overstated the problem.  The subject matter had certainly not been particularised in the referral as a concern of the Commission.  Nor had it been raised as a concern in any correspondence with Dr Traill.  This lack of earlier reference is understandable, since Dr Traill’s use of lithium only came to light on examination of the records produced, and during the hearing before the Committee.  However, the subject matter arose from the ‘referred services’ and, in these circumstances, we doubt that it is accurate to say that Dr Traill’s administration of lithium was entirely beyond the scope of the referral:  see generally Grey, supra, in particular [183]. 

105               Because of the importance placed by counsel for Dr Traill upon this aspect of the Report in support of the want of procedural fairness argument, it is necessary to set out what the Committee said about Dr Traill’s administration of lithium.  In relation to hepatitis C the Report stated:

Using this drug to treat patients with hepatitis C could at best be regarded as experimental, ie., there is no literature on the use of this drug as a treatment for hepatitis C and additionally lithium is a drug with known toxicity.  Nevertheless, Dr Traill stated:  ‘they [patients] prefer it… especially if it works’.

The Committee formed the opinion that this was experimental treatment and that these patients formed part of a ‘clinical trial’ by Dr Trail [sic].  Accordingly, it determined that Dr Traill’s services (Level B consultations) for all the patients with hepatitis C, and the pathology ordered for these patients while on the treatment with lithium, should not have been billed to Medicare.  In answer to the question as to whether he would charge a fee in such an experimental situation, particularly when the trial did not work, Dr Traill stated: ‘every patient is an experiment’.

The Committee was extremely concerned at the unethical way in which Dr Traill used lithium for the treatment of hepatitis C.  There was no evidence that lithium worked in hepatitis C and he expressed his views that people who used double blind controls were deluded.  He stated: ‘anybody who believes that they are running a double blind control trial is usually doubly blind also.’  He felt that his patients should not be disallowed the possible benefits of this treatment just because it had not been proven.

When the Committee asked Dr Traill whether he thought it was acceptable to offer an unproven treatment, and whether he thought it was ethical, he stated: ‘somebody has got to test it’ and ‘somebody has got to do [it]’.

Dr Traill stated that he had wide experience with lithium and acknowledged that one side effect of lithium was its renal toxicity.  He did not explain the side effects of lithium to the patients and therefore did not gain an informed consent.  As he was still continuing to treat patients in this way, and the Committee felt there was a serious and imminent threat to the life and health of these patients, this matter was referred to the Medical Practitioners Board of Victoria in accordance with section 106P of the Act.

When asked what he thought about the ethical issues involved in such treatment, he stated ‘somebody has got to test it’.  Additionally, he stated ‘I tell them [the patient] it is purely experimental.  If they want to try it they can.  If they do not want to try it they need not bother…’.  He had told a female patient, who he had referred to a hospital liver department, ‘Well, while we are waiting, do you want to try a low dose of Lithium?’  And she said, ‘Yes’, and by the time the appointment was due her ALT had come back to normal.  So she could not see any point in going to the hospital.’

The Committee also had concerns with the fact that these patients were brought back monthly and tests were ordered on them which were in the Committee’s opinion inappropriate, such as hepatitis C serology monthly, when Dr Traill himself admitted that antibodies did not go away in hepatitis C.  His treatment of patients in this manner was in the Committee’s opinion unacceptable and potentially placed his patients at risk.  These were inappropriate services, both for the patient and the pathology, and as the treatment was inappropriate, were not clinically relevant.

The Committee considered that Dr Traill’s conduct in treating patients in this manner (ie his clinical input) would be unacceptable to the general body of medical practitioners in general practice.  In particular, Dr Traill’s conduct in connection with the Level B consultations billed to Medicare by Dr Traill which were provided to:

(i)                 Patient S [name supplied in report] on 4/3/96, 28/3/96 and 20/6/96;

(ii)               Patient W [name supplied in report] on 18/2/96, 7/3/96 and 13/6/96;

(iii)             Patient H [name supplied in report] on 18/12/95, 4/2/96, 10/3/96, 24/3/96 and 30/5/96;

(iv)             Patient K [name supplied in report] on 26/10/95, 11/11/95, 2/12/95, 10/2/96, 9/3/96, 25/5/96, and 26/6/96; and

(v)               Patient L ** [name supplied in report] on 8/2/96, 24/3/96 and 13/5/96;

was unacceptable as these services did not warrant the payment of Medicare benefits.

**  The Committee did not have patient L’s [name supplied in report] medical records, but his treatment was discussed at the hearing and the Committee made its judgement on the basis of that discussion and the HIC’s report on page 131 of the Referral on the services billed by Dr Traill in respect of this patient.

106               In dealing with Dr Traill’s administration of lithium for multiple sclerosis and cancer, the Report stated:

During the hearing, Dr Traill also advised that he had also treated some patients suffering from multiple sclerosis and cancer with lithium.  When asked whether there was any literature on the treatment of multiple sclerosis (MS) with lithium, Dr Traill answered: ‘No, it so happens, but there is literature in relation to…it, literature on it in terms of experimental allergic encephalitis.’  He was then asked whether there was any literature on any trial of lithium extant. He replied: ‘Not that I’m aware.’

Dr Traill had treated a male patient (patient B) [named supplied in report]  who suffered from MS, with lithium.  Dr Traill stated: ‘He thought it did him well’ and ‘…the protocol is based on – well my own experience which came out of oncology, but there’s a particular reference which was of interest. It’s in Immuno Pharmacology of 1991, Inhibition’.  However, this document related to experimentation in animals.

Dr Traill also informed the Committee that he had treated an unidentified cancer patient with lithium.  He assessed the patient before and after treatment, and he stated: ‘…they showed significant changes when the Lithium was taken off, which struck me as interesting and the hypothesis was entertained that the crucial time Lithium treatment may be well be [sic] the time immediately after the blood peak blood level [sic] occurs…’.

[emphasis in original]

It became apparent to the Committee that Dr Traill was involved in his own experimentation which was of no value to the actual clinical management of these patients.  The side effects of lithium did not seem part of his equation. The Committee was concerned with the ethics of this patient treatment and considers Dr Traill’s conduct in treating patients in this matter (ie his clinical input) would be unacceptable to the general body of general practitioners.

billing arrangements:  Medicare vouchers (see [79(e)] above)

107               In this part of the Report the Committee addressed two matters.  The first was a concern that Dr Traill had claimed for services that he had not provided.  However, investigation revealed that clerical and recording errors, not attributable to Dr Traill, were responsible for certain errors.  The second matter concerned Dr Traill’s admitted practice at two centres (along with other employed doctors, it would seem) of signing blank Medicare claim forms so that such signed forms could be stored in bulk.  This was a matter of concern to the Committee, as the relevant form contained a declaration that all information on it was accurate.  The Report recorded the following concerning claims on Medicare made in respect of services provided by Dr Traill:

…Dr Traill admitted that such declarations were signed by him in advance.

Therefore, Dr Traill was not aware of what claims had been sent in his name notwithstanding the Health Insurance Act which placed responsibility on the doctor, individually.  Dr Traill stated: ‘…as far as I am concerned there is no evidence, like, if anybody saw those patients on that day.’

When the Committee informed Dr Traill that there were ways of checking whether filled-in vouchers were in fact his, he stated: ‘I am not going to sit around and check every voucher…’.

With regard to these patient services, for which claim forms had been lodged with Medicare on his behalf (and benefits paid), Dr Traill had no explanation for why there was no entry on the patient cards.  He stated: ‘… that is how the clinics work, I do not say I like it…’ and ‘I am a practitioner but as far as medical services are concerned I am an employee…’.

During the hearing and in his submission to the Committee dated 26 September 1997, Dr Traill stated that he is an employee of the centres and as such is not able to decide management issues relating to their operation.

108               The Committee concluded the following about this matter:

Whether or not Dr Traill was an employee or a contractor was irrelevant as far as the Committee is concerned.  Its view is that Dr Traill was responsible for ensuring in respect of services he provided which attracted a Medicare rebate that:

·          they were provided in accordance with accepted medical standards; and

·          they were billed appropriately.

The Committee considered that Dr Traill’s conduct in not taking responsibility for the direct bill claims submitted to Medicare on his behalf would be unacceptable to the general body of general practitioners.  The Committee does not relate this finding to any of the services it examined within the Referral Period.

Dr Traill’s submission to the Committee dated 26 September 1997 (see [79(f)] above)

109               The Committee then dealt with what Dr Traill referred to in his submission dated 26 September 1997 as four ‘basic issues’ and with further questions put to the Committee by Dr Traill in that submission as follows:

The Committee Not Dr Traill’s Peers

Dr Traill asserted to the Committee that he felt that because of the particular conditions under which he worked, the normal concepts and standards of general medical practitioners cannot reasonably apply to his situation or be used as a valid comparison.

He stated during the hearing:  ‘I don’t accept that the committee in fact represents my peers...in a number of respects and in particular about the qualification side of it.  As far as I can see the only common factors that you and I have together is that we’ve all got medical registration and we’re all the same gender.’

As Dr Traill practised as a vocationally registered general practitioner, the Committee comprised a Chair who is a medical practitioner (a Consultant Physician) and two vocationally registered general practitioners as required by section 95 of the Act.

Dr Traill’s statement above is another example of his inability to separate in his own mind his possession of specialist medical qualifications in pathology and his actual practice as a general practitioner.

Volume of item 23 consultations

Dr Traill submitted that on a pro rata basis, his annual patient numbers for Item 23 were less than the (presumed annual) guidelines provided by the HIC.  On this basis, he argued, there was no case to answer.

Any annual ‘targets’ provided by the HIC to doctors were no more than administrative guidelines and it is the role of this Committee to make a finding as to whether or not Dr Traill’s conduct in relation to the referred services would be unacceptable to the general body of medical practitioners in general practice.  The Committee’s findings and reasons are detailed throughout this report.

Errors in the Referral from the HIC

Dr Traill submitted that the computer printouts in Book 2 of the Referral contain numerous errors and identification omissions and therefore such evidence was inadmissible.

The Committee is aware that some errors could occur, particularly in relation to the scanning of direct billed claims by the HIC (see paragraphs 54-63 in relation to Billing Arrangements:  Medicare vouchers).  The Committee does not believe that there were any other errors in the Referral significant  enough to impact on its findings in relation to the specific services identified above.

Dr Traill is an employee of the centres

Dr Traill submitted: ‘Regarding ‘– conduct in connection with the rendering –’.  My conduct is that of an employee in relation to medical services.  I do not conduct the business of providing medical services to the public – that is management’s &/or the HIC’s role.’ [Emphasis in original.]

The Committee considers that this is a further illustration of Dr Traill’s failing to accept professional responsibility for his conduct in providing medical services which attract a Medicare rebate.  This matter is also addressed by the Committee at paragraphs 54-63 in relation to Billing Arrangements:  Medicare vouchers). 

Other questions raised by Dr Traill in his submission

Dr Traill also submitted 197 separate questions to the Committee.  The Committee has separately responded to Dr Traill in relation to these matters and in some cases advised him as to which organisations he should direct those questions.  A copy of the Committee’s response is attached as Attachment 4.

110               The Committee then drew its final conclusion as follows:

After considering the Referral and all the evidence before it, and after applying its combined body of knowledge, the Committee has concluded that Dr Traill’s conduct in relation to those services referred for consideration and specified throughout this report would be unacceptable to the general body of medical practitioners practising in general medical practice in Australia.

111               This last conclusion was not independently reasoned.  It was a conclusion to the Report; and we do not take it as other than the summation of the various conclusions reached in the Report and to which reference has been made.  In particular, up to this point, the Committee had been careful to base its general conclusions on the oral and documentary evidence before it, without relying on statistical extrapolation.  We do not read this conclusion as going any further, or otherwise using some unexplained basis for generalisation or extrapolation.

The Final Determination of the Determining Officer Under s 106T

112               On 10 March 2000 Dr Traill was sent a draft determination of the Determining Officer (the respondent to the application before us) under s 106S.  On 24 March 2000 Dr Traill provided a submission to the Determining Officer.  On 12 October 2000 the Determining Officer made a final determination relating to Dr Traill under ss 106T and 106U.  The final determination was accompanied by a statement of reasons.  We refer to both as the Final Determination.

113               The Final Determination was based on the Report, the referral of the Commission and Dr Traill’s submission of 24 March 2000.

114               The conclusions of the Committee were used by the Determining Officer to found his opinions and conclusions.  As we have already noted, the directions given by the Determining Officer were as follows:

(a)          that the Director or his nominee reprimand Dr Traill in relation to:

(i)      his conduct in relation to the eight cases referred to in the Report (see [91] and [92] above);

(ii)      his conduct in billing Item 23 for the specific consultations referred to in the Report (see [101] to [103] above);

(iii)     his conduct in not taking responsibility for direct bill claims as referred to in the Report (see [107] and [108] above);

(b)          that the Director, or the Director’s nominee, counsel Dr Traill in relation to the matters referred to in (a)(i) to (iii) above;

(c)          that Dr Traill repay certain Medicare benefits in sums of $83.40 and $1,019.75, which the Committee found did not warrant payment of a Medicare benefit; and

(d)          that Dr Traill be disqualified for periods of two and three years under pars 106U(1)(g) and (h).

115               Part of the reasons of the Determining Officer dealt with a complaint of Dr Traill that he had been denied an opportunity to answer allegations in the Report.  The findings contained the following, amongst other things, in respect of this assertion:

…I also note that the Committee provided a draft report to Dr Traill inviting final submissions on it.  Despite being granted an extension of time to do so, no further submission was received from Dr Traill.  I am satisfied that Dr Traill was accorded procedural fairness in this matter.

116               In section 3.2.1 of his reasons the Determining Officer said that in making his final determination under s 106T:

…I have considered all of the observations and findings made by the Committee in its Report.

117               The Determining Officer expressed the view in his reasons that the seriousness, extent and scale of the conduct identified by the Committee warranted the periods of disqualification.  He referred (inclusively) to the following nine aspects of inappropriate practice in connection with the seriousness of the matter: 

(a)         His high volume of servicing, particularly in providing 28,335 services under Medicare 20,541 having been level B consultations,  (Report p 8), which:

·          placed Dr Traill above the 99^th percentile of all vocationally registered general practitioners in Australia; and

·          in the Committee’s opinion, formed from discussions with Dr Traill and the Committee’s specific concerns and examination of medical records, examples of which are specified in the report (pp 12-16), demonstrated that adequate and appropriate care was not achieved by Dr Traill at the rate of consultations undertaken by him (Report p 10);

(b)         His not demonstrating appropriate follow-up of tests nor maintaining an appropriate recall system (Report p 11);

(c)          His practicing [sic] symptom orientated medicine whereby he initiated treatment for a condition but made no effort to follow it up, monitor progress and, if necessary, adjust medication (Report p 11);

(d)         His not recording details of past history, present and previous medications, allergies and sensitivities, or relevant family history for the majority of patients he consulted for the first time (Report p 11);

(e)          His not recording details of the presenting problem (Report p 12);

(f)           His ordering of pathology tests but normally only signifying this on the patient record as ‘Path’ without providing further details as to the nature of, or reasons for, the tests (Report p 12);

(g)         His practice of considering requests for follow-up of patients from specialists to whom he had referred a patient to be specialist referrals, and billing Medicare subsequent services provided by him as specialist referred consultations rather than general practitioner consultations (Report p 18);

(h)         His billing patients on many occasions for Item 23 consultations where the time actually spent with the patient would not have enabled the necessary elements of such a service to have been carried out (Report p 21); and

(i)           His conduct in not taking responsibility for the direct bill claims submitted to Medicare on his behalf (Report p 26).

118               The list did not include any reference to Dr Traill’s use of lithium.  Whilst it is necessary to consider what the Determining Officer said in section 3.2.1 of his reasons ([116] above) we think the better view, bearing in mind the injunction in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-72, is that the Determining Officer did not take the Committee’s findings in relation to lithium into account in making the directions under s 106U of the Act.

Review by the Tribunal

119               On 13 November 2000 a request was made on behalf of Dr Traill to the Minister under s 114(1) of the Act to refer the Final Determination to the Tribunal.  The Tribunal was duly convened.  The role of the Tribunal was to review the determination of the Determining Officer.  The review was a form of merits review, though with limitations which arose from the language of s 119 of the Act.  It was the decision of the Tribunal dated 14 May 2001 affirming the determination of the Determining Officer against which the appeal under s 124A was brought.

120               The Tribunal dealt with the nature of the proceedings, the applicant’s history, the referral, the hearing before the Committee (including the call for documents), the contents of the Report, the contents of the Final Determination, the relevant legislative provisions and the role of the Tribunal, in terms which were uncontroversial.

121               The Tribunal then dealt with the significant number of attacks on the Final Determination and the Report.  Some of those attacks were renewed before us, though transmogrified by the need to identify legal errors in the reasoning and decision of the Tribunal.  Before turning to those attacks which formed the basis of the appeal, a number of matters need to be addressed.

122               An important aspect of the decision of the Tribunal was the recognition, in detailed terms, of the material to which the Committee had recourse and the use made by the Committee of that material.  For instance, after dealing with aspects of Dr Traill’s practice at [54] to [59], the Tribunal referred, at [60] and [61], to some of the illuminating material in Dr Traill’s own correspondence and his detailed submission of 26 September 1997.  Referring to this material the Tribunal said:

62.         It is against a background exemplified by material including that referred to above that the Committee commenced to question the applicant concerning the general profile of his practice at the Premier Care Medical Centres.  Although many of the statements the applicant made to the Committee were not responsive to the questions asked of him, what does emerge is an understanding of the applicant’s approach to the provision by him of medical services at the centres at Kingsbury and Mill Park. The Committee clearly found many of his statements illuminating and fully supportive of the concern that he did not provide the appropriate level of clinical input in respect of each and every service that he rendered.

123               The Tribunal referred, at [64] to [66], to the Committee’s findings about lithium.  This discussion concluded with the following statement:

… In any event, there is no support for the assertion that the findings of the Committee in respect of the other matters found adversely to the applicant were tainted by what it said in relation to the applicant’s use of lithium.

124               In the light of the terms of the Final Determination, we read this as an implicit recognition by the Tribunal that the Determining Officer did not take the lithium findings into account in making his directions and that the balance of the matters found by the Committee, which were used by the Determining Officer, were not influenced by what was said by the Committee about Dr Traill’s use of lithium.

The Appeal and The Arguments of the Applicant

The First Argument:  The Procedural Fairness Complaint

125               Dr Traill’s first argument was based on the assertion that the Committee had not afforded him procedural fairness.  This complaint is found in grounds 15, 16 and 17 of the notice of appeal which were in the following terms:

15.         The applicant was not given a fair opportunity before and in the course of the hearing before the Committee to answer the allegations made against him.

16.         The Committee’s invitation to the applicant to comment on its report before it was sent to the Determining Officer was inconsistent with the requirements of the Act, and was incapable of rectifying its preceding failure to particularise its concerns.

17.         On the material which the Act allowed the Tribunal to receive, it was not open to it to be satisfied that the applicant had been afforded procedural fairness by the Committee.

126               At the hearing before the Tribunal counsel for Dr Traill sought to tender the correspondence referred to in [70] to [72] above.  The Tribunal refused to receive the correspondence on the basis that the authorities in this Court were to the effect that the terms of ss 115 and 119 of the Act limited the material (at least by way of evidence) which the Tribunal could consider to that identified in s 115:  Minister for Health v Thomson (1985) 8 FCR 213, 218-19, 226-27;  McIntosh v Minister for Health (1987) 17 FCR 463, 464, 467-68;  Yung v Adams (1997) 80 FCR 453, 478;  Determining Officer v Lusink (1998) 79 FCR 433, 437-39.  The Tribunal was of the view that it could only have reference to the material listed in subs 115(1), the terms of which have been reproduced above at [13].  During the hearing, we permitted counsel for Dr Traill orally to add a ground to the notice of appeal by way of challenge to the correctness of this decision by the Tribunal not to receive the correspondence.

127               None of the cases referred to in [126] above specifically dealt with the question whether the Tribunal could receive evidence beyond that listed in s 115, not for the purpose of reviewing on the merits the determination of the Determining Officer, and through it, the findings of the Committee, but for the purpose of assessing whether procedural fairness had been accorded to the practitioner by the Committee.  The nature of the review under s 119 has been discussed in a number of cases.  It is not a process of, or akin to, judicial review; rather it is a review of the determination of the Determining Officer (and so the findings of the Committee) on the merits, though upon a restricted evidential foundation: Tiong v Minister for Community Services and Health (1990) 93 ALR 308, 312, 321-22;  McIntosh v Minister for Health, supra at 467-68. 

128               It is not self-evident that the limitation on the material available to the Tribunal for the purposes of the merits review was intended to prevent the Tribunal receiving material that might assist it to decide whether procedural fairness had been accorded to the practitioner by the Committee.  This is especially so when, as here, the answer to this question may depend upon events that occurred after the closure of the hearing before the Committee.

129               During the hearing, over the objection of counsel for Dr Traill, we admitted into evidence the correspondence in question as potentially relevant to the question of whether the Tribunal had correctly rejected Dr Traill’s claim that he had been denied procedural fairness by the Committee.  For the reasons expressed later, we do not need to resolve the question as to whether the Tribunal was correct in its rejection of this evidence.

130               It was common ground before us that an assessment by a Tribunal as to whether a Committee did, or did not, accord a practitioner procedural fairness was not a task foreign or antithetical to the process of review by the Tribunal.  In its reasons, the Tribunal at [44] expressed its task as including the following duty:

… it is incumbent upon the Tribunal to exclude from its consideration any material that was otherwise relevant to an aspect of the investigation that the Committee was empowered to conduct but in relation to which there was a denial by the Committee of procedural fairness to the applicant.

131               The parties before us accepted the above as an accurate statement.  We proceed on that basis.

132               A number of complaints were made about the procedure adopted by the Committee and its alleged failure to apprise Dr Traill of what he had to meet.  We have touched on some of them in setting out the history of the matter.  It should not be forgotten that the error alleged is that of the Tribunal in being satisfied that the Committee had accorded Dr Traill procedural fairness, when as a matter of law, it could not have been so satisfied.

133               The submissions for Dr Traill concerning the alleged lack of procedural fairness were to the effect that there had been a failure on the Committee’s part to provide adequate notice of specific instances of alleged failure to provide an appropriate level of clinical input, at a level of specificity that would enable the doctor to ‘analyse and explain what occurred and thereby respond to the allegation of inappropriate practice.’  Reliance was placed on what Davies J said in Yung v Adams, supra at 455E, 458E, 463G and 469E, and on what Burchett and Hill JJ said on appeal: Adams v Yung (1998) 83 FCR 248, at 297.  The passages relied on were to the following effect:

(a)              the medical practitioner should be given adequate notice of the findings which might be made against him or her and a fair opportunity to respond (80 FCR at 455E);

(b)             the Committee should at some stage make it clear to the medical practitioner whose affairs are under investigation what are the possible findings which are the subject of the investigation and what are the grounds on which those findings might be made (80 FCR at 458E, emphasis added);

(c)              in the context of a referral which does not identify the details of inappropriate care in respect of specific patients, examples of cases in respect of which it is alleged that the medical practitioner has failed to provide a sufficient level of clinical input should be given, so that the practitioner can deal with the matter and analyse and explain what occurred and, thereby, respond to the allegation of inappropriate practice (80 FCR at 463G);

(d)             while touching on matters in questioning at a hearing may alert a practitioner to issues, it was, in proceedings of the type conducted by the Committee, incumbent on the Committee to give the practitioner adequate notice of the allegations so that he or she could consider them and bring forward his or her answers (80 FCR at 469E);

(e)              the Committee was bound by the rules of procedural fairness to make it known to the practitioner in a clear fashion what were the matters into which it was enquiring (80 FCR at 469F); and

(f)               Burchett and Hill JJ agreed without reservation that in ‘a case such as the present’ the Committee was bound to give notice of the findings that might be made against the medical practitioner and an opportunity for him or her to respond (83 FCR at 297).

134               In general, we would not wish to demur from what their Honours said, save to say that in any given case, what is adequate notice of a matter and when it should be provided, so as to enable a practitioner fairly to respond, is to be decided by reference to the circumstances of the case in question:  Kioa v West (1985) 159 CLR 550, 584.  We do not read the reasons of Davies J or of Burchett and Hill JJ in Adams, supra, as saying anything to the contrary.

135               Here, the Tribunal was of the view that, in the light of the history of the matter, Dr Traill had not been denied procedural fairness.  It concluded as follows:

50.     The applicant, therefore, knew that the Committee would be examining the information contained in the referral document and he knew which medical records the Committee would be examining.  Further, the referral was not the first notification that the applicant had received about the Commission’s concern.  He had been interviewed by a Health Insurance Commission Medical Adviser on two occasions concerning his practice – 6 September 1994 and 17 October 1995 – the latter date being within the referral period.

51.     We are unable to accept the submission by counsel for the applicant that the Committee’s proceedings were not procedurally fair.  The applicant was, in our opinion, given appropriate notice of the matter to be investigated by the Committee, namely the appropriateness of his clinical input in rendering medical services during the referral period and he had a real opportunity to respond.

136               The respondent submitted that, independently of the provision of the draft report, Dr Traill had been provided with ample detail of the matters into which the Committee inquired.  Putting to one side for the moment the question of Dr Traill’s use of lithium, we think that this submission is correct.

137               Dr Traill had been made aware on a number of occasions since 1994 that the Commission was concerned about the number of services he performed and, in particular, the adequacy of the clinical input he could provide to patients when seeing so many of them and thereby affording patients necessarily brief consultation times.  Dr Traill had indicated that he understood the Commission’s concerns, but asserted that he was not bound by ‘fiats’ issued by an organisation of general practitioners (i.e. the College).  The Commission’s referral in March 1997 identified and explained its specific concern that Dr Traill could not provide an appropriate level of clinical input when consistently rendering such a high volume of level B consultations.

138               As we have explained, the Committee’s letter to Dr Traill of 10 September 1997 reinforced the nature of its concerns that were to be the subject-matter of the inquiry.  The schedule to that letter identified a number of patients in respect of whom Dr Traill or the medical centres were to produce documents.  He was put on notice that the issue of the adequacy of clinical input into the treatment of patients would be explored by reference to the patients identified in the schedule and the notices to produce or summonses of which he had copies.

139               Counsel for Dr Traill complained that the questioning of Dr Traill by the Committee lacked sufficient ‘focus’ to bring home to him the issues the Committee considered important in relation to each of the patients ultimately mentioned in the Report.  In answer to this complaint, counsel for the respondent prepared and submitted a table which showed that the treatment of each of the patients specifically referred to in the Report had not only been the subject of a notice to produce but had been the subject of questioning by the Committee.  It is true that Dr Traill was not provided with written particulars of the Committee’s concerns about each of these patients, but it was clear enough what issues troubled the Committee.  Moreover, Dr Traill was invited by the Committee to make additional comments to it after the hearing.  He availed himself of that opportunity in his letter of 9 October 1997.  By that time, the Committee’s questioning had alerted him to the identity of the patients with whose treatment the Committee was particularly concerned.  Yet his letter did not seek to address the Committee’s concerns or to explain further his reasons for treating the patients as he had.  Dr Traill did not adduce any evidence in this Court to explain this failure.

140               Dr Traill’s submissions appeared to assume that the Committee could not have afforded procedural fairness to him unless it provided to him, in advance of the hearing, particulars of the inadequate clinical input applicable to each patient.  In our view, there is nothing in the reasoning of Davies J or Burchett and Hill JJ in Adams, supra, which leads to this conclusion.  What the duty to afford procedural fairness requires on each occasion must depend on the facts of the case.  In the circumstances of this case, the Committee afforded Dr Traill an adequate opportunity to understand and respond to the complaints against him, including the complaints relating to his treatment of particular patients.  The Tribunal was therefore correct to conclude that the Committee had not denied procedural fairness to Dr Traill.

141               Even if, contrary to our view, the Tribunal’s reasoning on the procedural fairness issue was incorrect, there is another obstacle confronting Dr Traill’s application for relief.  The obstacle arises because, as was clear on the material before the Tribunal and on the evidence before us, the Committee gave Dr Traill an opportunity to comment on its draft report.  He declined that opportunity.

142               It will be recalled that the Tribunal rejected the tender of the correspondence by which the Committee gave Dr Traill an opportunity to comment on the draft report, on the ground that it was bound to do so by reason of subs 119(1) of the Act.  Let it be assumed that the Tribunal correctly construed subs 119(1).  Nonetheless, the material before the Tribunal, in particular the Report, clearly established that the Committee:

• had provided the draft report to Dr Traill;
• had invited him to make final submissions on it;
• following a request from Dr Traill’s solicitors, had granted him a one month extension of time in which to lodge submissions; and
• despite the extension, received no submissions from Dr Traill.

143               The Tribunal did not identify the fact that the draft report had been provided to Dr Traill as its reason for finding that the Committee had not denied procedural fairness to him.  Doubtless the Tribunal did not do so because it rejected Dr Traill’s procedural fairness argument on other grounds.  But if the Tribunal had not rejected Dr Traill’s argument on other grounds, it would undoubtedly have addressed the significance of the Committee’s offer to Dr Traill to receive further submissions on the draft report.  Had the Tribunal directed its attention to that issue, it seems to us inevitable that the Tribunal would have concluded that the Committee’s offer cured any prior failure on the part of the Committee to accord procedural fairness to Dr Traill.

144               On the material before the Tribunal, there is nothing to suggest that the provision of the draft report was anything other than a genuine invitation to Dr Traill to make submissions or comments on any findings included in the draft.  Nor is there anything in the material before the Tribunal that would lead a detached observer to think that the Committee had prejudged the matter, thereby preventing the earlier procedural flaws from being cured.  In particular, there is nothing to suggest that the Committee, by the time it had provided its draft report to Dr Traill, had made up its mind, or had put itself in such a position that a fair-minded person would reasonably have believed that it would not genuinely consider any further submissions from him:  see generally Webb v R (1994) 181 CLR 41; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 90; Ebner v Official Trustee in Bankruptcy (2000) 75 ALJR 277 at [4]; and Minister for Immigration and Multicultural Affairs v Jia (2001) 75 ALJR 679, [95] to [105] and [177] to [187].

145               Dr Traill submitted that the procedure of providing a draft report for comment was contrary to the scheme of the Act.  This submission went so far as to assert that even if the draft had been ‘genuinely’ provided in circumstances not raising questions of apprehended bias, such a procedure, under the Act, can never cure a failure to accord procedural fairness at the Committee’s hearing.  Once the hearing before the Committee was closed, so it was argued, the Act prevented the curing of any defect in procedural fairness.  We disagree.  No part of the Act (and certainly not ss 115 and 119) limits in the way contended for on behalf of Dr Traill the procedures which a Committee might employ to ensure that procedural fairness is accorded to a practitioner in a particular case.

146               It follows that if the Tribunal was incorrect in the reasons it gave for concluding that the Committee had accorded procedural fairness to Dr Traill, the error of law would have been immaterial.  That is because, on the material before it, the Tribunal would have been bound to conclude that the Committee had accorded procedural fairness to Dr Traill by offering him an adequate opportunity to comment on the draft report.

147               The position is much the same if it be assumed that the Tribunal incorrectly rejected the correspondence relating to the provision of the draft report.  Once that correspondence is examined, it reinforces the view that the Committee’s offer discharged such remaining obligations as there may have been at that point to accord Dr Traill a fair opportunity to comment on any potentially adverse findings contained in the draft.  There is no reason to take the Committee’s offer in the letter of 28 August 1998 at anything other than face value.  The fact that the enclosed document was couched in terms of a final report must be read with the covering letter.   It was recognised by the solicitors for Dr Traill as a ‘draft report’.  In the circumstances it plainly was.  Two further months were asked for in order to consider ‘all relevant material and respond.’  One month was given.  The opportunity to respond was not taken up.  No further extension was sought.  Neither Dr Traill nor his solicitors suggested in correspondence that further submissions were futile, or that the Committee had made up its mind.

148               Thus, if the Tribunal had incorrectly rejected the tender of the relevant correspondence, any error of law on its part would again have been immaterial.  Had the correspondence been received in evidence, the Tribunal would necessarily have concluded that the Committee’s offer to Dr Traill cured any antecedent failure to act in accordance with the standards of procedural fairness.

149               So far we have put to one side the question of procedural fairness in relation to the Committee’s findings on Dr Traill’s use of lithium to treat certain conditions.  The short answer to Dr Traill’s contention that he had not been given adequate notice that the Committee intended to make an adverse finding on this issue is that, on our reading of the Final Determination, the respondent did not take the adverse finding into account in deciding what directions to give.

150               We are also inclined to the view that Dr Traill was given sufficient notice by the Committee of its concerns that he had inappropriately prescribed lithium for patients suffering from hepatitis C, multiple sclerosis and cancer.  For obvious reasons, the referral did not expressly identify the lithium issue as a concern of the Commission.  Nonetheless, as we have explained (see [104] above), the issue might be seen as being within the confines of the referral.  Be that as it may, Dr Traill could have been under no misapprehension at the hearing that the Committee had grave doubts about the propriety of his experimenting, in effect, with lithium having regard to its known toxicity.  While Dr Traill may well have been unprepared to deal with the issue at the hearing itself, he could have addressed it in his post-hearing submissions.  He did not.

151               There is a further answer to Dr Traill’s argument on this question.  Whether or not he was accorded procedural fairness on the lithium issue before the Committee gave him the opportunity to comment on the draft report, that opportunity, for the reasons we have given, effectively cured any antecedent failure on the Committee’s part.  Dr Traill could have addressed the Committee’s concerns expressed in the draft report, but once again he chose not to do so.

The Second Argument: The Sampling Complaint

152               The notice of appeal contained three related grounds dealt with in submissions under the rubric of sampling.  They were as follows:

18.    The Committee was bound to follow the procedure provided in ss 106G to 106K of the Act (prior to their repeal) before basing its findings upon an investigation of only some of the services referred by the Health Insurance Commission, and it made no attempt to do this.

19.    Alternatively, if that procedure was not mandatory upon the Committee, its sampling was so inadequate as to render its general findings unsupportable by the Tribunal.

20.    It was not open to the Committee nor the Tribunal to uphold the complaint made in the referral from the Health Insurance Commission in the absence of findings which identified which of the referred services, or what proportion or class of them, were rendered without an appropriate level of clinical input.

153               It was common ground that the Committee did not follow the statutory sampling procedure.

154               At the relevant time, the Act included Subdiv C of Div 4 of Part VAA, which was headed ‘Findings based on statistical sampling’.  Section 106G provided that Subdiv C applied to the Committee

if the referral is expressed to relate to services rendered or initiated by the person under review that are one or more of the following:

(a)               services of a specified class;

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

(c)               services provided within a specified location.

155               Section 106H provided as follows:

(1)       Subject to section 106J, in making findings on the conduct of the person under review in connection with the referred services, the Committee may base its findings wholly or partly on its findings on his or her conduct in connection with a sample of those services.

(2)           The sample of services:

(a)               must be produced in accordance with directions issued under section 106K; and

(b)               in being used to base the Committee’s findings with respect to the referred services, must only be used in accordance with those directions.

156               Subsection 106J(1) required the Committee to notify the person under review of any finding it proposed to make with respect to the referred services that was ‘based on use of a sample of services under section 106H’.  The person under review was entitled to request the Committee to increase the size of the sample of services, whereupon the Committee was obliged to increase the size of the sample and review its proposed findings in accordance with directions issued under s 106K before using the sample of services under s 106H: subs 106J(2).  The person under review was also entitled to present his or her case to the Committee addressing all of the referred services: subs 106J(3).  Section 106K empowered the Minister to issue directions about the production of samples of services for the purposes of s 106H; increasing the size of samples of services under s 106J; and use of samples of services under s 106H.  Any such directions had to be in accordance with advice received from the Australian Bureau of Statistics. 

157               The language of s 106G was plainly intended to reflect the terms of par 87(1)(b) of the Act. Subsection 87(1) provided as follows:

The referral must specify whether it relates to one or both of the following:

(a)             specified services;

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

(i)                 services of a specified class;

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

(iii)             services provided with a specified location.

158               Dr Traill submitted that s 106G of the Act applied to the Committee set up to consider whether he had engaged in inappropriate practice because the referral was ‘expressed to relate to…services provided within a specified location’ and was thus within par 106G(c) of the Act.  He further submitted that, although the Committee was not obliged to undertake sampling, if it did so it was obliged to follow the procedures laid down by ss 106H–106J.  Those procedures included two safeguards for the practitioner: the sampling had to be conducted in accordance with directions formulated on the advice of the Australian Bureau of Statistics (s 106K) and the practitioner had the right to require the sample to be increased or to require the Committee to address all the referred services (s 106J).  In this case, so Dr Traill argued, the Committee had adopted a ‘sampling approach’, but had failed to afford him the safeguards under the statutory procedure.  Furthermore, Dr Traill contended that, even if the Committee had not contravened the statutory requirements, it had made findings about his conduct on a manifestly inadequate basis, thus giving rise to a Wednesbury unreasonableness ground of review.

159               The respondent challenged all steps in the argument.  He contended that the referral made on 20 March 1997 had been pursuant to par 87(1)(a) of the Act (relating to ‘specified services’), not par 87(1)(b)(iii) (‘services provided within a specified location’).  On this basis, ss 106H-106J did not apply to the referral in Dr Traill’s case.  In any event, so the respondent argued, the Committee had not engaged in ‘sampling’ in a relevant sense.  Finally, the respondent contended that there was ample material on which the Tribunal could have based its findings.

the question of construction in relation to sampling

160               The respondent relied on the decision of the Full Court in Tankey v Adams (2000) 104 FCR 152, to support his contention that the referral in the present case was not within par 87(1)(b)(iii) of the Act and thus not within par 106G(c).  In that case, the referral to the Director concerned (at 173):

…the conduct of Dr James Adrian Tankey in relation to whether he has engaged in inappropriate practice in connection with the rendering and initiation of Medicare services as defined by the Act.

The referred services were described as follows:

For the purposes of s 87(1) of the Act, this referral relates to all services rendered and initiated by Dr Tankey from all his practice locations and all institutions visited by him.

The referral also nominated three practice locations at which Dr Tankey practised.

161               Dr Tankey argued that the referral came within par 87(1)(b)(iii) on the ground that the referral specified locations, namely ‘all [Dr Tankey’s] practice locations’ and ‘all institutions visited by him’.  The Full Court in Tankey v Adams, supra, pointed out that the authorities on this subject were not easily reconciled.  In Artinian v Commonwealth (1996) 43 ALD 235, Hill J had regarded a referral in virtually the same terms as the one involving Dr Traill as having been made pursuant to par 87(1)(a) of the Act.  Hill J emphasised that the word ‘specify’ should be given its ordinary English meaning of ‘to mention or name specifically or definitely’.  On the other hand, von Doussa J in Retnaraja v Morauta (1999) 93 FCR 397, had reached a different conclusion on almost the same language, although his Honour had not given reasons for characterising the referral this way, presumably because it was not necessary to resolve the question in that case.

162               The Full Court in Tankey v Adams, supra, said that neither of these decisions, nor the decision of Davies J at first instance in Yung v Adams, supra, provided any authoritative statement of principle on the question of construction.  Their Honours rejected (at 177-178) Dr Tankey’s submission that the referral fell within par 87(1)(b)(iii) of the Act:

We do not accept the appellant’s submission that the referral concerning Dr Tankey’s conduct fell within s 87(1)(b)(iii) of the Act.  Such a conclusion would do violence to the language of that paragraph.  In our opinion, the referral did not relate to ‘services provided within a specified location’, but was far more general in scope.  We consider that the referral was a referral relating to ‘specified services’ and was made pursuant to s 87(1)(a).  Section 106G did not, therefore, render applicable subdiv C of Div 4 of Pt VAA of the Act.  Any failure by the Committee to comply with directions issued by the Minister is, accordingly, of no consequence.

163               The decision in Tankey v Adams, supra, does not control the result in the present case.  This is because the Full Court distinguished Retnaraja v Morauta, supra, in the following terms (at 176):

It is possible to distinguish the referral concerning Dr Retnaraja from that concerning Dr Tankey.  Dr Retnaraja’s referral was limited to his practice locations ‘in the State of South Australia’.  It could be said that this was a ‘specified location’.  Dr Tankey’s referral was not confined to any location whatever.  It extended to ‘all his practice locations’.  Had Dr Tankey engaged in practice at a location other than one of the three specifically nominated in the referral, including a location outside the State in which he principally conducted his practice, the services which he provided at any such location would undoubtedly have fallen within the ambit of the referred services.  That would not have been the position in respect of Dr Retnaraja.

There is another basis upon which Dr Retnaraja’s referral may be distinguished from that concerning Dr Tankey.  Dr Tankey’s referral included ‘all institutions visited by him’.  That expression is entirely general in scope.  It can hardly be described as being limited to any ‘specific location’.

164               It appears from this passage that their Honours recognised that a referral of services rendered by a practitioner from ‘his practice locations in [a particular State]’ during a nominated period might not be ‘services rendered within a specified location’.  On the other hand, their Honours did not expressly state that they would have reached the same conclusion as did von Doussa J in Retnaraja v Morauta, supra.

165               The question of construction is not an easy one to resolve.  The starting point is that s 106Gonly applies if the referral is expressed (relevantly) to relate to services rendered by the practitioner that are ‘services provided within a specified location’ (par 106G(c)).  The language of par 106G(c) is clearly drawn from par 87(1)(b)(iii) of the Act.  Subsection 87(1) requires the referral to ‘specify’ whether it relates to one or bothof

• specified services (par 87(1)(a)); or
• (relevantly) services provided within a specified location (par 87(1)(b)(iii)).

166               Clearly subs 87(1) contemplates that a referral may specify that it relates to both specified services and services provided within a specified location.  The concepts are therefore not mutually exclusive.

167               As we have noted, the primary dictionary definition of specify is ‘mention or name specifically or definitely; state in detail’.  ‘Specified’ has a corresponding primary meaning.  The parties seem to have accepted that a referral of services rendered by a practitioner over a particular period of time is a referral of ‘specified services’ within par 87(1)(a) of the Act.  If that is correct, it implies that services can be sufficiently specified by a temporal limitation.

168               The only additional limitation imposed by the referral in the present case is the direction confining it to services rendered from Dr Traill’s ‘practice locations in the State of Victoria’.  It might be thought that if a temporal limitation suffices for par 87(1)(a), a geographical restriction suffices for par 87(1)(b)(iii) and its counterpart, par 106G(c). But in construing par 106G(c) it is necessary to take into account the whole of the statutory language.  The provision does not simply embrace services provided at a specified location, but ‘services provided within a specified location’.  Giving this language its ordinary meaning, it would seem to be directed to services provided within a particular place, such as a surgery, hospital or institution.  The words do not readily suggest that the ‘location’ the drafter had in mind was a particular State or Territory.

169               In the present case there was no suggestion that Dr Traill had a practice location outside Victoria.  In these circumstances, the words of the referral do not express a genuine limitation.  On the contrary, they embrace all Dr Traill’s practice locations.  Indeed, the referral is apt to include, for example, hospitals and other institutions at which Dr Traill regularly provided services to patients.  In our view, despite the dicta in Tankey v Adams, supra, the referral in the present case was not within par 106G(c) of the Act.  Accordingly, the sampling provisions in s 106H-106K of the Act did not apply to the Committee. 

the statutory sampling procedure in ss 106G-106K

170               Dr Traill did not suggest that, even if s 106G applied ss 106H-106J to the Committee, it was bound by the legislation to follow the statutory procedure.  His submission was that if the findings were based on ‘a sample’ of the services rendered by Dr Traill, they could be sustained only if the sample had been selected and analysed in accordance with the statutory sampling procedures.

171               It is clear that a Committee is not bound to use sampling procedures in making its findings.  Section 106H provides that in making findings on the conduct of the person under review in connection with the referred services the Committee maybase its findings wholly or partly on findings on his or her conduct ‘in connection with a sample of those services’.  Section 106H does not say that any findings must be based on statistical sampling. We are prepared to assume that, as Dr Traill submitted, if a Committee engages in sampling to support its findings, that sampling must conform to the requirements laid down in ss 106H-106K.  So much appears to have been assumed if not decided by the Full Court in Tankey v Adams, supra at 174.

172               In our view, the Committee did not reach its findings on the basis of ‘sampling’.  Sections 106H-106K are plainly concerned with a process of reasoning that reaches findings on the assumption that extrapolations can validly be made from a practitioner’s conduct in a limited class of cases to a much wider class of cases.  The sections are directed to the subject of the statistical reliability of drawing conclusions from samples.  This is shown by the fact that any directions issued pursuant to s 106K must be in accordance with advice received from the Australian Bureau of Statistics.

173               It is true that the Committee chose to examine the records of a limited number of patients seen by Dr Traill on a few days.  But that does not mean that the Committee assumed that it could extrapolate from the findings it made about Dr Traill’s treatment of those patients to reach conclusions about his conduct generally.  The Committee was well aware that it had not engaged in any statistically valid sampling procedure.  It identified specific problems through its analysis of specific cases, but reached its general findings on the basis of Dr Traill’s own evidence as to how he conducted his practice.  Much of that evidence was given in response to the Committee putting its concerns to him.

174               We agree with the Tribunal’s analysis of the Committee’s reasoning process:

67.    The Committee expressly acknowledged in its report that it had not proceeded in accordance with the formal sampling procedures referred to in section 106H of the 1973 Act.  It had before it, however, the medical records relating to more than 200 patients, those records relating to the services rendered to the identified patients throughout the referral period.  The Committee continued its investigation by discussing with the applicant specific problems that the members of the Committee had identified as the result of examining those records, referring to the particular patients by name.  Although only a limited number of patients were discussed with the applicant, those patients had presented with a variety of medical problems.  It is reasonable to conclude that the Committee regarded the applicant’s general evidence concerning the conduct of his practice as having been confirmed in material respects by the explanations he gave in relation to the specific patients upon whose treatment he had been asked to comment.  In these circumstances the Committee no doubt considered it unnecessary to question the applicant about other patients at a further hearing.  In this regard it is of some significance that, in the course of responding to questions about specific patients, the applicant repeated some of the general statements which he had previously made as to his mode of practice and which are referred to earlier in these reasons.  He added a statement to the effect that he became bored if seeing less than eight patients an hour.

68.  We are satisfied that a group of medical practitioners with extensive experience in general practice, such as the members of the Committee, could, from an examination of the material that was before them, draw an overall picture of the applicant’s practice during the referral period and discern its essential features.    They could also consider how the conduct of the applicant in carrying on his practice in that fashion would be viewed by the general body of practitioners.  The material before it was such that the Committee could reasonably conclude that the applicant was not, in every instance, providing a level of clinical input that was adequate for the proper care of his patients and that his conduct in connection with the rendering of some of the services the subject of the referral amounted to inappropriate practice within the meaning of that expression in subsection 82(1) of the 1973 Act.

175               It was not necessary for the Committee or, for that matter, the Tribunal to choose between examining all services rendered by a practitioner over a particular period, on the one hand, and making a statistically sound extrapolation from a limited class of cases.

Wednesbury unreasonableness

176               Dr Traill’s submission that there was no rational foundation for the conclusion reached by the Committee (and that the Tribunal should have so found) relied on the observations of Burchett and Hill JJ in Adams v Yung, supra at 299:

In a case where the allegation of conduct is failing to give appropriate care to patients, having regard to the number of services the doctor has performed, a committee if it is to consider the totality of the services referred must, on the legislation presently under consideration, of necessity engage in a proper sampling procedure.  It is difficult to see how the proceedings could otherwise be conducted.  While the sample procedure in s 106H (which has now been repealed by the Health Insurance Amendment Act (No 1) 1997 (Cth)) is not made mandatory by the section that precedent provides a sure guide, and the only sure guide, to the resolution of the problems such as arose in the present case.

177               Those observations were made in the context of particular circumstances of that case.  We do not understand their Honours to have intended to say that findings as to whether a practitioner has failed to give appropriate care to patients can be made only by the use of statistically valid sampling techniques.  Everything must depend upon the nature of the evidence before the decision-maker.  In this case, as we have explained, a great deal turned on Dr Traill’s own evidence as to how he conducted his practice during the relevant period, in particular his explanations of the approach he customarily took to patients presenting with symptoms or illnesses of the kind presented by those whose records were before the Committee.  The Committee made its findings on the basis of the totality of evidence before it, without impermissibly extrapolating from the specific cases it had examined in detail.  There was nothing unreasonable about this process.

The Third Argument: The Findings of Misconduct

178               Grounds 21 and 22 of the notice of appeal were in the following terms:

21.     The Tribunal failed to consider and to rule upon submissions made to it as to errors vitiating the Committee’s findings on each of the twenty patients whose treatments it examined in its report.

22.     The Tribunal upheld the determination by taking into account criticisms of the applicant’s statements, qualifications and practice which were beyond the subject-matter of the referral from the Health Insurance Commission and were therefore irrelevant.

179               Dr Traill complained in relation to the first of these grounds (ground 21) that the Tribunal failed to address in its reasons the detailed submissions that were put to it upon the particular examples used by the Committee in its report.  The essence of the complaint was that it was the duty of the Tribunal to ‘work through’ these detailed submissions – that is deal with them expressly in its reasons, ‘so as to examine the foundations of the Committee’s generalised criticisms.’  By failing to undertake this exercise the Tribunal, it was said, overlooked or misconceived its real function.

180               We do not agree.  The Tribunal said the following at [69] of its reasons:

From a careful consideration of the whole of the material that was before the Committee and taking into account the addresses made to the Tribunal, we are in substantial agreement with the criticisms that the Committee made of the manner in which the applicant conducted his practice. …

181               We would not conclude from an absence of reference in its reasons to the detailed submissions of the applicant’s counsel that the Tribunal did not, in carrying out its review, give consideration to the material before it and the submissions put to it on behalf of Dr Traill therein.  The Tribunal said it gave careful consideration to that material and the addresses made to it.  It is not correct to say that the absence of a detailed express ‘working through’ of counsel’s submissions reveals a failure to consider the matters put to it.  Nor does it reveal any misunderstanding by the Tribunal of the task before it.  In these circumstances, it is unnecessary to explore the relationship between the giving of reasons by the Tribunal, its task of review under the Act and the considerations of the kind referred to by Fisher J in Sullivan v Department of Transport (1978) 20 ALR 323, 352-53, by Jenkinson J (with whom Woodward and Foster JJ agreed) in Dennis Willcox Pty Ltd v Federal Commission of Taxation (1988) 79 ALR 267, 276-77 and by Sundberg J in Repatriation Commission v Smith (1997) 75 FCR 298, 306.  We see no error of law of the kind referred to in ground 21 in the way the Tribunal approached the matter and expressed its reasons.

182               The complaint in ground 22 as developed in submissions was directed to the attention which the Tribunal gave to the record-keeping of Dr Traill.  The Committee had dealt with this as well.  The Committee made the point that the keeping of adequate patient medical records is ‘an essential component in providing adequate clinical input’.  Though the Tribunal did not express the matter using the same language, it is plain from its reasons that the question of adequate record-keeping was viewed by it as an incident of, and integral to, the assessment of adequate clinical input.

183               The criticism made was that dealing with inadequacies in record-keeping as an incident of assessing clinical input in this way was outside the terms of the referral and that dealing with such matters reflected a misdirection by the Tribunal of the proper task before it.

184               We disagree.  The question whether adequate records are kept and if they are not, in what respects there is a deficiency, can be rationally seen as relevant to assessing the adequacy of clinical input in relation to services to patients when it is said that patients may not be being given adequate consultation time, especially in a surgery where patients may see different doctors from visit to visit.  Also, underlying the criticism, is the incorrect assumption that the Committee and the Tribunal must somehow stay within the confines of the ‘concerns’ originally expressed in the referral as the governing limitation of the referral.  This is not so:  see Grey, supra.  We see no error of law of the kind referred to in ground 22 in the way the Tribunal approached the matter.

The Fourth Argument:  The Question of Dr Traill’s Culpability

185               Paragraph 24 of the notice of appeal was in the following terms:

The Tribunal failed to consider relevant matters before affirming the severe disqualifications imposed by the Determining Officer, and in particular:

(i)      The limited extent of the Committee’s investigation and findings.

(ii)          The changes to the applicant’s practice in the second half of the referral period and following his interview by a Health Insurance Commission counsellor, and in particular his ceasing to practise at the Mill Park medical centre on Sundays.

(iii)        The amendments to the Act made in 1999 which inserted s 106KA, and the extrinsic material to that amendment which explained that there had previously been no standard as to a volume of servicing that was generally unacceptable.

(iv)        The significant departures from the time limits for decision-making provided under the Act, and the consequential inability of the Tribunal and applicant to address the current necessity for or appropriateness of a sanction by way of disqualification.

(v)          Whether, in view of the Committee’s constitution with general practitioners and the fact that the referral was confined to the rendering of general practitioner Medicare items, it was appropriate to disqualify the applicant in relation to his practice as a specialist pathologist.

186               These criticisms were said to be directed to the penultimate paragraph of the Tribunal’s reasons, which was as follows:

78.    The findings that have been made of inappropriate practice reflect very serious concerns as to the conduct of the applicant in carrying on his practice.  Those concerns are not confined to the services rendered to the patients identified in the Committee’s report.  The applicant has given no indication of his willingness to change his method of practice so as to accord more closely with what would be acceptable to the general body of general practitioners.  Nothing that has been put to the Tribunal convinces us that we should vary the directions given by the respondent.

187               However, that paragraph should not be read in isolation.  It is the termination of a carefully expressed review of matters which of themselves, and as they were treated, are matters of considerable gravity in the conduct of a medical practice. It was not merely, as counsel suggested, an ‘endorsement in one paragraph’ of the Determining Officer’s views.

188               The specific complaints are that five matters were not taken into account.  For there to be an error of law on the part of the Tribunal, not only must it be shown that these matters, individually or collectively, were not taken into account, but also that these were matters which, as a matter of law, were required to be taken into account:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, 6 [14]; and see Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 178 ALR 707, 739 [131] and [132].

189               As to the first such matter (ground 24(i)), it was submitted that the limited extent of the Committee’s investigation and of its findings ‘as to the extent to which the referred services had been affected by the faults found by it [that is the Committee]’, did not entitle the Determining Officer, in the absence of valid statistical extrapolation from a sample of the referred services, to make a sweeping judgment as to the ‘extent and scale of [Dr Traill’s] conduct’.

190               There are a number of answers to this proposition.  First, as we have sought to explain earlier, the various conclusions of the Committee were expressed at varying levels of generality and specificity depending on the material founding them, which included Dr Traill’s (generalised) evidence, the medical records, exemplification by specific cases and the Committee’s expertise.  It is wrong to say that the Committee’s investigation and findings were limited.  Secondly, even if one ascribes some limitation to the investigation and findings it was not such as to lead to the conclusion that the views of the Tribunal referred to in [186] above were irrational.  Thirdly, the weight and effect of the Committee’s findings were matters to be considered and decided by the Tribunal.  We see no failure to consider a matter required by law to be taken into account.

191               As to the second to fifth such matters (grounds 24(ii) to (v)), none of those matters is, by reference to the terms of the Act or any necessary implication from the Act or any principle of common law, legally required to be taken into account.

192               The Tribunal considered the Report and the Final Determination and appears to have formed the view that not only was the matter a serious one, but it found that the applicant had given no indication of any willingness to change his method of practice.  These elements were ample foundation, in conjunction with the balance of the reasons of the Tribunal, for its acceptance as appropriate of the measures directed by the Determining Officer.

193               No error of the kind referred to in par 24 of the notice of appeal has been demonstrated.

The Fifth Argument:  The Question of Retrospectivity

194               Ground 23 of the notice of appeal was in the following terms:

The amendments made to s 106U(3) and (4) by the Health Insurance Amendment Act (No 1) 1997 which increased the maximum periods of disqualification were not applicable in relation to inappropriate conduct which occurred before those amendments.

195               The Determining Officer, in addition to directing that Dr Traill be reprimanded, counselled and required to repay Medicare benefits, directed that:

·               he be disqualified, pursuant to par 106U(1)(g)(i) of the Act in respect of all services to which an item relates in Group A1 of Part 2 of the General Medical Services Table for a period of three years; and

·               he be fully disqualified, pursuant to par 106U(1)(h) of the Act, for a period of two years.

196               The effect of the disqualification is that Medicare benefits are not payable in respect of services rendered by the appellant (s 19B). 

197               Prior to the coming into force of the Health Insurance Amendment Act (No 1) 1997 (Cth) (Amendment Act 1997) on 6 November 1997, subs 106U(3) of the Act provided that a direction within par 106U(1)(g) had to specify a period of disqualification of up to twelve months, to start when the determination took effect.  A direction under par 106U(1)(h) had to specify a period of disqualification of up to six months, also to start when the determination took effect.  The Amendment Act 1997, schedule 1, items 21 and 22, omitted ‘12 months’ from subs 106U(3) and substituted ‘3 years’ and omitted ‘6 months’ from subs 106U(4) and substituted ‘3 years’.  The effect of the amending legislation, therefore, was to increase the period of disqualification that could be imposed on a practitioner.

198               The applicant submitted in this Court and to the Tribunal that the Determining Officer had no power to direct periods of disqualification greater than twelve months under subs 106U(3) and six months under subs 106U(4), these being the periods prescribed in the legislation as it stood during the referral period.  The Tribunal held, however, (at [74] to [77] of its reasons) that Parliament intended that items 21 and 22 should apply to a medical practitioner regardless of the date on which the matter was referred or the period to which the referral related.  In reaching this conclusion, the Tribunal relied on s 4 of the Amendment Act 1997, which provided that the amendments made by a number of items of schedule 1 (but not items 21 and 22) did not apply to matters referred under s 86 of the Act before the commencement date (6 November 1997).  The Tribunal considered that since items 21 and 22 were excluded from s 4, Parliament must have been intended that the amendments effected by those items would apply to a practitioner regardless of the date of the relevant referral or the period to which the referral related.

199               The applicant submitted that the Tribunal had erred in law in reaching this conclusion.  Counsel for Dr Traill pointed out that the Amendment Act 1997 commenced after both the referral to the Director (which occurred on 20 March 1997) and the conduct the subject of the referral (which occurred from 1 July 1995 to 30 June 1996).  He contended that the disqualification had ‘obvious penal consequences’ for the applicant.  Accordingly, it was said, the normal presumption against retrospectivity of penal laws applied and, in the absence of clear and unambiguous words, the presumption had not been rebutted.  Counsel further submitted that s 4 of the Amendment Act 1997 did not assist the respondent because each of the items referred to in s 4 were concerned with procedural matters and, in the absence of a special transitional provision, would not have attracted the presumption against retrospectivity.  Consequently s 4 did not provide a clear and unambiguous statement that the amendments effected by items 21 and 22 were to apply retrospectively so as to increase the penalties to which a medical practitioner would be exposed by reason of ‘inappropriate practice’.

200               The respondent submitted that the exclusion of items 21 and 22 from s 4 of the Amendment Act 1997 was quite deliberate.  It was true, so the respondent said, that some of the items referred to in s 4 concerned procedural provisions, but not all could be so characterised.  For example, item 3 amended the definition of ‘inappropriate practice’ in subs 82(1), a key provision in Part VAA of the Act.  The intent of Parliament was that the amendments effected by items 21 and 22 should apply even to medical practitioners in respect of whom referrals had been made prior to the Amendment Act 1997 coming into force.  According to the respondent, it was not correct to characterise this as retrospective legislation.  Rather, the amending legislation operated prospectively in respect of the sanctions that could be imposed on practitioners who were found to have engaged in ‘inappropriate practice’.  This conclusion was supported by the fact that the legislation was not penal in character but protective, in the sense that the object of Part VAA of the Act was and is to protect the Commonwealth and patients against abuse of the Medicare benefits system.

201               It has been pointed out that the term ‘retrospective’ in relation to legislation can be used in a number of ways and is often employed loosely: A Palmer and C Sampford, ‘Retrospective Legislation in Australia: Looking Back at the 1980s’ (1994) 22 Fed L Rev 217, at 218.  The starting point for present purposes must be the well-known statement of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261, 267.  There his Honour said that the

…general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.

202               It will be seen that this passage does not include the word ‘retrospective’.  Nonetheless, the difficulty presented by this formulation is to determine when legislation confers or imposes or otherwise affects ‘rights or liabilities which the law ha[s] defined by reference to past events’.

203               The courts have tended to apply the principle stated by Dixon CJ rigorously where legislation exposes a person to a criminal penalty greater than that for which the law provided at the time the relevant conduct occurred.  In Samuels v Songaila (1977) 16 SASR 397, for example, legislation increasing the penalty for a particular traffic offence came into effect on the day the offender pleaded guilty.  It was held that the increased penalties applied only to offences committed on or after the date the amending legislation came into effect.  See also Bakker v Stewart [1980] VR 17; cf O’Neill v Reid [1959] NZLR 331.  In the case of Commonwealth offences, the same result would flow from par 8(d) of the Acts  Interpretation Act 1901 (Cth) (the Interpretation Act), which provides that where an Act repeals the whole or part of a former Act, then unless the contrary intention appears the repeal is not to affect any penalty or punishment incurred in respect of any offence committed against the repealed Act.

204               The amendments to subss 106U(3) and (4) effected by the Amendment Act 1997 do not attract the principles relating to legislation altering penalties for criminal conduct.  Paragraph 8(d) of the Interpretation Act does not apply because it is concerned with penalties for ‘an offence committed against an Act’.  The reasoning in Samuels v Songaila, supra, does not apply because a direction made by a Determining Officer under s 106U, that the person under review be reprimanded, repay benefits or be disqualified, is not imposed as a punishment. Such a direction flows from a finding that the person has engaged in inappropriate practice in connection with rendering or initiating some or all of the referred services and is, as Davies J said in Yung v Adams, supra at 472, ‘imposed with a view to protecting patients and the Commonwealth against abuse of the system’.  The Full Court which, by majority, allowed an appeal in part did not comment on this passage.  Thus, although the person under review can be said to be subjected to something in the nature of disciplinary sanctions, the legislative regime is protective rather than punitive: cf Bar Association (NSW) v Evatt (1968) 117 CLR 177, 183; and Peverill v Backstrom (1994) 54 FCR 410, 429, per curiam.

205               In La Macchia v Minister for Primary Industry (1986) 72 ALR 23, the fact that disciplinary measures were protective of the public rather than punitive was considered to be significant.  In that case, ‘M’ had been convicted in June 1985 of an offence against the Fisheries Act 1952 (Cth), in that he used unlicensed rock lobster pots.  In August 1985, after the conviction, the Fisheries Act was amended to empower the Minister to cancel a licence if the ‘holder of the licence is convicted of an offence against this Act’.  ‘M’ argued that his licence was not liable to cancellation because the amending legislation conferred a penal power which was sought to be exercised retrospectively.  Toohey J (with whom Bowen CJ agreed) said there were two answers to this contention.  The first was that (at 26):

…the Minister was not exercising a penal power even though cancellation imposed a hardship on the applicants by depriving them for a time of their ability to fish commercially.  Cancellation is not part of the penalty a Court of Petty Sessions may impose.  It is part of the scheme of the Act which seeks to control commercial fishermen in their fishing activities.  Rock lobsters are a valuable common property resource and activities damaging the resource are hard and costly to police.  The power of cancellation is an important aspect of the system of control and should be seen in that light.

206               The second reason given by Toohey J for rejecting M’s argument in La Macchia v Minister, supra, was this (at 26):

while the Minister could not have given a notice prior to the sub-section coming into operation, he was not constrained thereafter to rely upon a conviction that itself occurred after the sub-section came into operation. The commission of an offence, whether before or after 31 August 1985, is a circumstance warranting the giving of a notice under sub-s (3A).  The order does not have retrospective effect simply because it relies upon conduct that occurred before the power existed.

207               Toohey J cited the decision of the Queen’s Bench Division in Re a Solicitor’s Clerk [1957] 1 WLR 1219, in support of this analysis.

208               The third member of the Court in La Macchia v Minister, supra, French J,also took the view (at 33) that:

[the] fact that the power to cancel a licence under s 9A(3A) [introduced by the amendment] is conditioned upon a class of past events, does not mean that the inclusion in that class of events which predated the law, renders its operation retrospective.

209               French J conveniently summarised the facts and concise reasoning in Re a Solicitor’s Clerk supra, as follows (at 33):

In Re a Solicitor’s Clerk …the disciplinary committee of the Law Society had made an order under s 16(1) of the Solicitors’ Act 1941, as amended by s 11(1) of the Solicitors’ (Amendment) Act 1956, directing that no solicitor should thereafter employ the appellant, a solicitor’s clerk who had been convicted of larceny in 1953, without the permission of the Law Society. The appellant contended that the committee was giving retrospective effect to the Act of 1956 by applying it to a conviction which took place in 1953.  Lord Goddard CJ, with whom Barry and Havers JJ, agreed said (at 1222):

            ‘…In my opinion this Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as a solicitor’s clerk in the future and what happened in the past is the cause or reason for the making of the order, but the order has no retrospective effect.  It would be retrospective if the Act provided that anything done before the Act came into force or before the order was made should be void or voidable, or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force or before the order was made.  This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past’: see also Customs and Excise Commissioners v Thorn Electrical Industries Ltd [1975] 1 All ER 439 at 447-8.’

210               A similar approach to that taken in La Macchia v Minister, supra, was adopted in Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856.  There the Market Court Act 1978 (Vic) empowered the Market Court to make an order prohibiting a trader who had repeatedly engaged in unfair conduct from entering into contracts except on terms specified by the court.  Gobbo J held that the unfair conduct of a trader occurring before the commencement of the legislation could be taken into account on an application to make an order operating in the future.  His Honour endorsed a comment made by Lush J in Bakker v Stewart, supra at 22, that Re a Solicitor’s Clerk, supra, was ‘concerned with past history as a condition of present fitness’.  Gobbo J added these further comments (at 860):

In my view, the presumption against retrospective operation does not direct itself to legislation which merely uses past acts as a foundation for future action.  In one sense such legislation may appear to attach new consequences to past acts but I am of the opinion that the type of consequence envisaged in the judgment in Maxwell v Murphy was one where, for example, a new disability was created that prevented further enjoyment of an existing or accrued right.  In no meaningful sense was the trader here the holder of an accrued right to trade without risk of future restraint based on past conduct.

211               In our opinion, subss 106U(3) and (4) of the Act were concerned with past history as a condition of present fitness.  The amendment of those provisions by items 21 and 22 of schedule 1 to the Amendment Act 1997 did not attract the principle stated in Maxwell v Murphy, supra.  This can be seen from the structure of the Actitself.  The Act required the Director either to dismiss a referral made by the Commission pursuant to subs 86(1) or to set up a Committee to consider whether the practitioner had engaged in ‘inappropriate practice’ as defined in subs 82(1) (see ss 89 and 93).  The Committee was required to give a report to the Determining Officer setting out its findings as to whether the practitioner’s conduct in connection with rendering or initiating the referred services was, in the Committee’s opinion, ‘unacceptable to the general body of the members of the specialty [including general practice] in which the practitioner was practising at the time’ (subs 81(2) and s 106L).  If the report contained a finding that the practitioner had engaged in ‘inappropriate practice in connection with rendering or initiating some or all of the referred services’, the Determining Officer had to make a final determination under s 106U (ss 106S and 106T).  The determination had to contain one or more of a number of specified directions including directions for a reprimand, counselling, repayment of an amount equivalent to Medicare benefits paid for inappropriate services, disqualification in respect of particular services or full disqualification (s 106U).  The final determination took effect twenty-eight days after the person under review received a copy or upon the completion of the appeal process (s 106V).

212               The Determining Officer was therefore required to determine, by reference to conduct in connection with the rendering of the referred services, whether the practitioner should be disqualified and, if so, for what term.  In short, any disqualification operated prospectively and was founded on past conduct by the practitioner.  The amendment increasing the period of prospective disqualification that could be imposed did not affect the applicant’s rights or liabilities in the sense required by Maxwell v Murphy, supra.  The amendment operated prospectively, albeit by reference to the practitioner’s past conduct.  There is therefore no reason not to give effect to the amending legislation in accordance with its terms.

213               It follows that in the absence of legislation providing to the contrary, the amendments to subss 106U(3) and (4), effected by items 21 and 22 in schedule 1 to the Amendment Act 1997, applied to referrals which had not been resolved before the amending legislation commenced.  In a case where the Committee had reported under s 106L to the Determining Officer adversely to the practitioner, the referral would not be resolved until a final determination was made by the Determining Officer pursuant to s 106U of the Act.  The significance of s 4 of the Amendment Act 1997 is that Parliament did not specifically provide that items 21 and 22 should not apply to matters referred before the Amendment Act 1997 commenced.  The absence of any reference to items 21 and 22 in s 4 of the Amendment Act 1997 confirms the intent of Parliament that the longer periods of disqualification should apply to referrals not finally resolved before the Amendment Act 1997 came into force.

214               We should add that the protective rather than the punitive nature of the sanctions specified in subss 106U(3) and (4) is a further reason for concluding that the legislation should be construed as providing for a prospective period of disqualification founded on past conduct.  As we have noted, independently of provisions such as par 8(d) of the Interpretation Act, courts are reluctant so to construe legislation which amends criminal penalties.  The difference would seem to be this.  Criminal penalties are meant, amongst other things, to deter those who would otherwise be tempted to breach the criminal law.  It is difficult to see how penalties can deter if they are not in force at the time the relevant conduct takes place.  Measures such as disqualification of practitioners who engage in ‘inappropriate practice’ are designed principally to protect the public, rather than to deter (although it would be unrealistic to deny that the measures have some deterrent effect).  Moreover, to the extent that the presumption against the ‘retrospective’ operation of legislation rests on the injustice of denying the reasonable expectation of citizens who rely on the law at any given time (cf Palmer and Sampford, op cit at 233), it is not reasonable for a practitioner to engage in ‘inappropriate practice’ in the expectation that the period of disqualification to which he or she might be subject cannot thereafter be changed by Parliament.

215               In our opinion, the Tribunal did not err in concluding that the maximum periods of disqualification that the Determining Officer could impose on the applicant were those provided for in subss 106U(3) and (4) as amended by the Amendment Act 1997.

Conclusion

216               For the above reasons in our view the application should be dismissed.  We see no reason why the applicant should not pay the costs of the respondent.

Associate:

Dated:              16 August 2002