FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – referral under s 86(1) of the Health Insurance Act 1973 (Cth) in respect of a general medical practitioner alleged to have engaged in inappropriate practice – examination of the Health Insurance Act 1973 – procedure to be adopted when proceedings brought against medical practitioner under review –  whether doctor afforded natural justice – need for a committee when considering the totality of the services referred to engage in a proper sampling procedure – need for a committee to confine itself to the reference before it – whether role of the Professional Services Review Tribunal is confined to accepting the Committee’s conclusions and merely reviewing matters of penalty specified by the determining officer – whether administrative discretion of the determining officer should be exercised without regard to events known at date of decision – whether where the decision of the Committee upon which the Tribunal acted was infected with error there was any utility in referring the matter back to a Tribunal.

WORDS AND PHRASES – “inappropriate practice”, “practitioner”, “review”

Health Insurance Commission Act 1973 (Cth)

Health Insurance Act 1973 (Cth) – ss  80, 81, 82, 83, 86, 87, 89(1)(b), 91, 93, 94(1), 95, 101, 102, 103(1), 106H, 106J, 106K, 106L, 106Q, 106R, 106S, 106T, 106U, 108, 114(1), 115, 117, 119(1), 124A

Health Insurance (1993-1994 General Medical Services Table) Regulations

Health Insurance (1994-1995 General Medical Services Table) Regulations

Artinian v Commonwealth (1996) 43 ALD 235 - cited

Kioa v West (1985) 159 CLR 550 – applied

Minister for Health v Thomson (1985) 8 FCR 213 – applied

McIntosh v Minister for Health (1986) 17 FCR 463 - cited

Freeman v McKenzie (1988) 82 ALR 461 – cited

Romeo v Asher (1991) 29 FCR 343 – cited

Tiong v Minister for Community Services & Health (1990) 93 ALR 308 – cited

Determining Officer v Lusink (unreported, Sundberg J, 12 February 1998) - cited

Re Brindle; Ex parte F B & F A McMahon Pty Ltd (1992) 35 FCR 506 – cited

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 – cited

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 – cited

Ousley v The Queen (1997) 71 ALJR 1548 – cited

Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649 – cited

Boddington v British Transport Police (House of Lords, 2 April 1998, unreported) – cited

The Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 91 FLR 37 – cited

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 – cited

Leung v Minister for Immigration & Multicultural Affairs (unreported, Finkelstein J, 28 November 1997) – considered

Walsh v Tattersall (1996) 188 CLR 77 – distinguished

R v General Medical Council; Ex parte Gee [1986] 1 WLR 226 – distinguished

Peatfield v General Medical Council [1986] 1 WLR 243 – followed

Duncan v Medical Disciplinary Committee [1986] 1 NZLR 537 - followed

The Queen v Thomas; Ex parte Brodsky (1963) 109 CLR 434 - cited

ANTHONY ADAMS v STEVEN YUNG AND ANOR

NG 11 of 1998

BEAUMONT, BURCHETT AND HILL JJ

SYDNEY

15 MAY 1998

THE COURT ORDERS THAT:

1.         Appeal allowed in part.

2.         The order below that the matter be remitted to a Tribunal differently constituted for further review be set aside.

3.         Decision of the Tribunal be set aside.

            In lieu thereof, it be ordered that the decision of the determining officer be set aside.

4.         Appellant to pay the First Respondent’s costs of the appeal.

5.         Appeal otherwise dismissed.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

INDEX TO REASONS FOR JUDGMENT OF BEAUMONT J.

INTRODUCTION....................................................................................................................

THE HISTORY OF THE MATTER IN ITS LEGISLATIVE CONTEXT...........................

(a) The Referral........................................................................................................................

(b) The notice of the Referral....................................................................................................

(c) The Director’s decision to set up a Committee.....................................................................

(d) The proceedings before the Committee.............................................................................

(e) The Committee’s Report...................................................................................................

Patient base.......................................................................................................................

The role of the GP..............................................................................................................

Home visits........................................................................................................................

Consultation time................................................................................................................

After hours care.................................................................................................................

Medical records.................................................................................................................

(f) The Determination.............................................................................................................

(g) The reference to the Review Tribunal.................................................................................

(h) The Tribunal’s decision.....................................................................................................

THE “APPEAL” TO THE FEDERAL COURT....................................................................

THE DECISION AT FIRST INSTANCE.............................................................................

Natural justice........................................................................................................................

Inappropriate practice............................................................................................................

The Referral...........................................................................................................................

The Committee......................................................................................................................

Determining Officer................................................................................................................

Professional Services Review Tribunal....................................................................................

Relief (Orders).......................................................................................................................

DR ADAM’S ARGUMENTS ON THE APPEAL................................................................

The Referral - the Commission’s powers................................................................................

The Committee’s powers and duties.......................................................................................

The Determining Officer’s powers and duties..........................................................................

The Tribunal’s powers and duties...........................................................................................

DR YUNG’S NOTICE OF CONTENTION..........................................................................

CONCLUSIONS ON THE APPEAL.....................................................................................

(a) The Referral and the Director’s decision to set up the Committee.......................................

(b) The Committee’s procedures and the Report.....................................................................

(i) The procedures adopted by the Committee....................................................................

(ii) The Report...................................................................................................................

(c) The Tribunal’s Decision.....................................................................................................

(i) The legal scope of the review.........................................................................................

(ii) Did the Tribunal have power to receive fresh evidence?..................................................

(iii) Did the Tribunal err in law by failing to give adequate reasons?......................................

ORDERS ON THE APPEAL.................................................................................................

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

This matter raises for consideration some important questions as to the true meaning of the scheme of that part of the health insurance legislation which deals with professional services review.  Further important questions arise as to the application of these statutory provisions in the particular circumstances of this case.

By notice of “appeal” in the Court’s original jurisdiction brought under s 124A of the Health Insurance Act 1973 (“the Act”), the present respondent, Steven Yung, appealed from a decision of the Professional Services Review Tribunal (“the Tribunal”) on a review under Division 3 of Part VA of the Act.  A Judge of the Court (Davies J) ordered that the Tribunal’s decision be set aside and remitted the proceedings to the Tribunal, differently constituted, to be heard and decided again.  This is an appeal, brought by an officer appointed under the Act, from his Honour’s judgment.

THE HISTORY OF THE MATTER IN ITS LEGISLATIVE CONTEXT

There is no dispute about the history of the matter, which may be described, inevitably at some length, in its legislative context as follows:

(a)       The Referral

By a referral dated 8 May 1995, the Health Insurance Commission (“the Commission”), acting pursuant to s 86 of the Act, referred to the Director of Professional Services Review (“the Director”) “the conduct of Dr Steven Yung in relation to whether (in the period 1 January 1994 to 31 December 1994) he has engaged in inappropriate practice in connection with the rendering of Medicare services... within... premises... [at]... Kirrawee [NSW]” (“the Referral”).

Section 86 is in Part VAA of the Act.  This Part deals with the Professional Services Review Scheme.  In outline, the Part creates a scheme “under which a person’s conduct can be examined to ascertain whether inappropriate practice (see s 82) is involved”.  It also provides for “action that can be taken in response to inappropriate practice” (s 80(1));  Division 2 of Part VAA (ss 83-85) creates the administrative structure for reviewing conduct, consisting of the Director and the Professional Services Review Panel (“the Panel”) (s 80(2));  Division 3 (ss 86-94) is about referral of a person’s conduct for review, and provides for the Director to decide whether to set up a Professional Services Review Committee (“the Committee”) (established under Division 4) to consider the conduct (s 80(3));  and Division 5 (ss 106Q-106X) provides for the Determining Officer (appointed under s 106(Q)) to make determinations to deal with “inappropriate practice” found by the Committee (s 80(5)).

By s 86(1) it is provided that the Commission may 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.  The services must have been rendered during the two year period preceding the referral, and on or after 1 September 1993.

A practitioner engages in “inappropriate practice” if that practitioner’s conduct in connection with rendering services is such that a Committee could reasonably conclude that:

(1)        if the practitioner is a specialist - the conduct “would be unacceptable” to the general body of the members of the specialty in which the practitioner was practising when the services were rendered;  or

(2)        if the practitioner is not a specialist - the conduct “would be unacceptable” to the general body of the members of the profession in which the practitioner was practising when the services were rendered (s 82(1)).

The referral must specify whether it relates to specified “services”, or “services” of a specified class, or provided to a specified class of persons, or within a specified location (s 87(1)).  “Service” means a service for which, at the time it was rendered, a Medicare benefit was payable (s 81(1)).

The Minister may make guidelines (s 87(3)).  The content and form of the referral must comply with any guidelines (s 87(2)).  The Minister made guidelines dated 9 May 1994 (“the Guidelines”) relevantly as follows:

By cl 2(1) of the Guidelines, it is provided that information of a kind listed in Schedule 1 may be included in a referral.  The information specified in Schedule 1 includes the following:

·      The number of patients for whom services were rendered.

·      the number of pharmaceutical prescriptions of a particular class written.

·      The total Medicare benefits paid or payable for services rendered.

By cl 3 of the Guidelines, it is provided that material of a kind listed in Schedule 2 may be included in a referral.  That list includes the following:

·      Reports of counselling given to the practitioner under review.

·      Correspondence between the practitioner under review and the Commission.

·      Records of interview with the practitioner under review, or with patients of that practitioner or with any other person concerned in the provision of the referred services.

·      Statements by patients of the practitioner under review.

·      Reports by consultants or professional organisations.

·      Relevant medical literature.

As has been noted, the subject of the Referral was the conduct of Dr Yung in relation to whether he had engaged in “inappropriate practice” in connection with the rendering of Medicare services at the Kirrawee premises.

In giving its reasons for the decision to refer, the Commission stated in the Referral that it “is  concerned that Dr Yung would not be able to provide an appropriate level of clinical input when consistently rendering high numbers of services or when regularly working excessively long hours at his Kirrawee practice”.

In its Referral, the Commission stated that in the referral period (1 January 1994 to 31 December 1994) Dr Yung provided 19,622 services under Medicare, of which 17,331 (88.3 per cent) were provided at his Kirrawee practice mostly on Mondays, Tuesdays and Thursdays (details were provided), corresponding to an average of over 100 services on each of those days;  and that on Wednesdays, Fridays, Saturdays and Sundays, services (averaging only 8 to 13 per day) were mostly provided at locations other than Kirrawee.

The Commission stated in its Referral that it took account of the following:

·      The servicing patterns of all general practitioners (“GPs”) in Australia.  In terms of services rendered annually, Dr Yung provided more services than 99 per cent of all GPs in Australia (details were provided).

·      The findings of the Interpractice Comparison survey of about 1,000 GPs conducted by the Royal Australian College of General Practitioners (“RACGP”) in 1994, according to which the GPs surveyed spent an average of 37.5 hours per week in contact with patients;  and the top 25 per cent of GPs saw 164 patients per week, corresponding to an average of 8,469 services annually, equating to approximately 13.7 minutes per consultation (details and literature (an article) were provided).

·      The draft criteria in the Entry Standards for General Practice Accreditation developed and adopted by the RACGP which state (Criterion 1.2.2) that “consultation times are long enough to allow quality care.  This means that average times are not less than 10 minutes.  Actual times for individual appointments will vary according to clinical need”.

The Referral stated that, using this Guideline, to provide 100 services on a day, Dr Yung should have worked continuously for at least 16.7 hours.

·      A written opinion (attached to the Referral) by Dr Jill Gordon, Medical Educator, Fellow of the RACGP and consultant to the Commission, that -

“...Dr Yung’s conduct is unacceptable to the general body of General Practitioners in a number of respects:

(a)        the excessively high number of services provided annually by Dr Yung

(b)        the excessively high number of services provided on 128 days by Dr Yung in the year under review

(c)        the excessively long hours worked by Dr Yung on those days.”

In her attached opinion, Dr Gordon stated that “in [her] opinion it is not possible for a general practitioner with [Dr Yung’s] service profile to provide an adequate level of quality of care”.  She went on to say:

“With respect to Dr S Yung in the referral period 1/1/94-31/12/94:

·      Dr Yung maintained an excessively high level of servicing for the year;

·      Dr Yung was recorded as seeing in excess of 100 patients on [128] separate days.  There is no justification for such a level of servicing, except perhaps in a rural or other area where no other provider is available, and then only under very unusual and occasional circumstances;

·      Dr Yung would on some occasions, have needed to have worked for excessively long hours in order to consult with such large numbers of patients.  Since Dr Yung charged predominantly for level B consultations (average of 10 minutes per service) he would need to have worked for over 20 hours per day on some occasions.  It is not reasonable to assume that any doctor can provide an adequate standard of care under these circumstances.”

The Referral added that Dr Gordon “also based her view on research by Professor John Howie which has confirmed time as a proxy measure for quality care in general practice”.  (In her opinion, Dr Gordon referred to a paper by J G R Howie and others, published in the British Journal of General Practice, entitled “Long to short consultation ratio:  a proxy measure of quality of care for general practice”.  The paper was attached to the Referral.)

In dealing with Dr Yung’s “background”, the Referral noted that Dr Yung had been “counselled” in May 1994 as to the Commission’s concerns. 

In an attached record of an interview held on 24 May 1994, discussion of Dr Yung’s practice profile statistics was recorded as follows:

·      In the year from 1 April 1993, Dr Yung had rendered 21,132 services, which were predominantly “Level B” consultations (18,735).  (The meaning of Level B is described below.)  He worked mostly on Mondays, Tuesdays and Thursdays.  On those days, with only two exceptions, he rendered more than 100 services and frequently more than 120.  The record of interview recorded that Dr Yung was informed that “he might not be able to maintain appropriate level[s] of clinical input for those numbers of patients in a day”.

The Referral noted Dr Yung’s overall volume of servicing at all locations (19,622 services) placed him in the top one per cent (99th percentile, 15,000 services) for GPs in New South Wales;  and that Dr Yung had stated in the record of interview that he worked from 7.00 am to 11.00 pm at the Kirrawee practice “without a break”.

The Referral included a table demonstrating the pattern of servicing at Kirrawee making a calculation of the time required to provide these services based on the RACGP Draft Entry Standards (i.e. average of 10 mins/service).  The table indicated that the majority of the services rendered at Kirrawee fell within the range of 101-120 daily, requiring 16.8 to 20 hours work.

The Referral also included a graph demonstrating that Dr Yung rendered in excess of 100 services per day on 128 occasions and that the majority of Medicare services rendered by him at Kirrawee were between 101 and 120 per day.

Another table demonstrated that the 17,331 services rendered by Dr Yung at Kirrawee generated Medicare benefits in the total amount of $373,512 with an average benefit of $43.56 for each of the 8,575 patients.

The appellant’s written submission included a table incorporating the following information in respect of Dr Yung’s practice at Kirrawee in the period in question:

“

                                                                                                              ”

The relevant services and fees referred to in the table (Items 3 (Level A), 23 (B), 36 (C) and 44 (D)) in Part 2 of the Schedule to the Regulations under the Act (being the 1993-94 General Medical Services Table) as follows:

(b)       The notice of the Referral

By s 88(1) of the Act, it is provided that the Commission must send a copy of the referral to the person under review within forty eight hours of sending the referral to the Director.  The copy must be accompanied by a notice inviting the person under review to make written submissions to the Director, within fourteen days, stating why the Director should dismiss the referral without setting up a Committee (s 88(2)).

A notice was given to Dr Yung pursuant to s 88(2).

(c)       The Director’s decision to set up a Committee

By s89(1) it is provided that within twenty eight days after receiving the referral, the Director must either dismiss it, or set up a Committee to consider whether the practitioner has engaged in inappropriate practice.

On 5 June 1995, the Director decided to set up a Committee, consisting of Dr Bernard Kelly (Chair), Dr Phillip Knowles and Dr David Rivett (Panel members).  Each member of the Committee was a “vocationally registered GP”.

Section 3F of the Act provides for the registration of certain medical practitioners as “vocationally registered” GPs.  The Commission will grant registration if (a) the RACGP certifies that any applicant’s medical practice is predominantly general practice and that he or she has had appropriate training and experience in general practice;  or (b) the applicant is eligible under the Regulations (s 3F(6)).

For the purposes of the Schedule, the General Medical Services Table, “general practitioner” is defined to mean:

“(a)     a practitioner who is vocationally registered under section 3F of the Act;  or

(b)        a practitioner who:

(i)         is a Fellow of the RACGP;  and

(ii)        participates in the quality assurance and continuing medical education of the RACGP;  and

(iii)       meets the RACGP requirements for quality assurance and continuing education;  or

(c)        a practitioner who is undertaking an approved placement in general practice:

(i)         as part of a training program for general practice leading to the award of the Fellowship of the RACGP;  or

(ii)        as part of another training program recognised by the RACGP as being of an equivalent standard;”

Dr Yung was vocationally registered as a GP under s 3F.

(d)       The proceedings before the Committee

Subdivision A (ss 95-6) of Division 4 of Part VAA deals with the constitution of Professional Services Review Committees.  A Committee’s Chairperson and two other Panel members must be practitioners who belong to the profession in which the practitioner was practising (s 95(2)).  If the practitioner was (as here) a vocationally registered GP, the Panel members must also be so registered (s 95(5)).

Subdivision B (ss 97-106F) of Division 4 deals with the proceedings of Committees relevantly as follows:

The Committee may, at any meeting, hold a hearing at which evidence is given, and/or documents are produced, to the Committee (s 101(1)).  The Committee must hold a hearing if, after considering the matters that are the subject of the referral, it appears to the Committee that the person under review may have engaged in inappropriate practice (s 101(2)).  If the Committee proposes to hold a hearing, it must give to the person under review at least fourteen days’ written notice, giving “particulars of the matter to which the hearing relates” (s 102).  The person under review is entitled:  (a) to attend the hearing and to be accompanied by a lawyer or another adviser, but is not entitled to be represented by a lawyer (s 103(1));  and (b) to question any person giving evidence and to address the Committee (s 103(2)).

Subject to the Subdivision and the Regulations, the procedure for conducting the hearing is within the discretion of the presiding Committee member (s 106(1)).  The Committee is not bound by the rules of evidence, but may inform itself on any matter in any way it thinks appropriate (s 106(2)).

Subdivision C (ss 106G-106K) of Division 4 deals with findings by the Committee based on certain kinds of statistical sampling.  Subject to s 106J, in making findings on the conduct of the person under review, 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 (s 106H(1)).  Section 106J confers certain rights upon persons under review concerning samples.

In the present case, the Committee met on 15 June 1995, considered the Referral, and decided that a hearing must be held.

With a letter to Dr Yung dated 15 June 1995, Dr Kelly attached a notice of a hearing by the Committee on 14 and 28 July 1995 “into the matter [whether Dr Yung ‘may have engaged in inappropriate practice in connection with rendering particular services’ at the Kirrawee premises during the referral period]”.

By letter dated 26 June 1995, the Committee informed Dr Yung of the procedure to be followed at the hearing in these terms:

“After formal introductions, Dr Kelly will deliver an opening statement, explaining the hearing process in relation to the referral from the... Commission....  Documents before the committee will be rendered into evidence after which the Chairperson will ask you to provide details of your professional training and experience etc.

You are invited to address the committee regarding the referral - indeed, throughout proceedings, please feel free to address the committee on any matter which you consider relevant.

As a guide, the committee will be interested in:

your practice arrangements, ie type of practice, staffing, financial & clerical arrangements, patient profiles etc.

pathology and radiology referrals;

ancillary services and arrangements;

referrals to consultants;

absences from the practice, ie holidays;  and

your understanding of your responsibilities under the Vocational Registration programme.

The committee will also seek your consideration of:

the referral;

the opinion expressed in the referral by the HIC’s consultant, Dr J Gordon;  and the visits and reports from HIC Medical Advisers.

The committee would wish to examine the practice records, in particular, those referred to in Schedule 1 of the Notice of Hearing...”

The Committee held a hearing on 14 July 1995 along the lines indicated in its letter.  In particular, at the commencement of the hearing Dr Kelly said to Dr Yung:

“As stated in the Secretary’s letter of 26 June ‘95 we would also wish to discuss your practice arrangements, that is, the type of practice, staffing, financial and clerical arrangements, patient demography, etcetera, pathology and radiology referrals ancillary services and arrangements, referrals to consultants, absence from the practice, that is, holidays, and your understanding of your responsibilities under the vocational registration program.  We will seek your consideration of the referral, the opinion expressed in the referral by the HIC consultant, Professor Gordon and the visits and reports from the... Commission medical advisers.”

Dr Yung, who was accompanied by his solicitor, gave evidence and was questioned by the Committee.  The Committee also heard evidence from Dr Brett Gooley, another practitioner at the Kirrawee Medical Centre.

The Committee held a second sitting on 27 July 1995 when the Committee examined clinical records and heard further evidence from Dr Yung and Dr Gooley.

(e)       The Committee’s Report

Subdivision D of Division 4 deals with reporting by Committees.

The Committee must give to the “Determining Officer” (who is appointed by the Minister under Division 5 - see below) “a written report setting out its findings on whether”:

(1)        if the person under review was a specialist, the conduct was, in the Committee’s opinion, unacceptable to the general body of the members of the specialty;  or

(2)        if not a specialist, the conduct was, in its opinion, unacceptable to the general body of the members of the profession (s 106L(1)).

Subject to the power of the Director to grant an extension of time (up to thirty days), the Committee must report within ninety days after it was set up (s 106M(1)).

In the present case, the Committee reported on 30 August 1995 (“the Report”).  In the Report, the Committee noted the Referral, the evidence from Dr Yung and Dr Gooley, the clinical records it examined, and a written submission received from Dr Yung’s solicitor after the hearing.  The Committee found that Dr Yung’s conduct in relation to the referred services “would not be acceptable to the general body of vocationally registered general practitioners”.

In its reasons, the Committee summarised its findings to the following effect:

·      The Kirrawee practice environment was “of poor quality... where financial motivation took a higher profile than... professionalism... [there was] little evidence of in-house quality assurance”.  Dr Yung “practised episodic rather than continuing care... [there was] little... evidence of preventative care”.  His medical records were “of very poor quality”.  He had only ninety three Level A consultations “despite an extraordinarily high” total of 15,502 consultations at Kirrawee during the referral period.  Dr Yung’s “level of competence is questioned”.  He provided a “minuscule” level of home visiting compared with his peers and therefore did “not show a commitment to the immobile”.  Other “concerns” were expressed in the documentation accompanying the Report.

·      Although counselled, Dr Yung had made no effort to change his patient numbers per day.  His lack of responsiveness to counselling “demonstrate[d] either arrogance or stupidity and is incomprehensible...”

·      Dr Yung was “grossly at variance with... adjacent area practitioners (as shown by [Commission] statistics), the general body of practitioners, with world opinion, with what the Committee itself considers to be reasonable and what it believes to be the opinion of Dr Yung’s peers in good standing”.

·      Having expressed its finding that Dr Yung’s conduct would not be acceptable to the general body of vocationally registered GPs, the Committee added that had Dr Yung not been a vocationally registered GP, the Committee was still of the opinion that his professional conduct was unacceptable to the general body of medical practitioners.

·      The Committee said that it was unable to accept that a practitioner is able to give proper professional attention to patients when rendering such a high number of services and when regularly working such excessively long hours.

As will be seen below, the Report provided details of its consideration of the issues before it, including aspects of Dr Yung’s conduct, his solicitor’s “final” written submission and a review of the literature.  The Committee prefaced this part of its consideration of the matter with these remarks:

“It should be said from the outset that, if any practitioner’s behaviour was subdivided into segments and each segment critically examined, it would be likely that deficiencies could be found.  The Committee took the view that the overall pattern of behaviour was of importance and it would be unwise to rely on the findings of any individual segment.  It would, however, be important to examine different aspects individually and from that examination construct a global view of the practitioner’s professional conduct.”

The Committee proceeded to deal with some specific issues as follows:

·      Patient base

Information about the profile of patients may be significant for “home visit profile, return visits to the practice, length of consultations etc.,” as, the Committee said, this could “skew” Dr Yung’s “profile” if, for instance, there was a large number of older patients.  The Committee noted that Dr Yung’s estimate of Asian patient attendances (only 4 per cent) was not numerically significant.

·      The role of the GP

Dr Yung was unable to “vocalise” any of the “key concepts”, e.g. continuity of care, whole patient care, preventive care, and the role as the patient’s advocate.  When asked about continuity Dr Yung said that “patients are happy to see any doctor within the practice”.  This indicated to the Committee that there was “little sense of bonding or ‘ownership’ of the patients”.  Dr Yung was providing “episodic rather than continuing care... a different style of practice from the vast majority of Vocationally Registered practitioners”.

·      Home visits

Although Dr Yung “repeatedly asserted” that he visited patients “when requested”, his ratio was one such visit per 1,938 consultations, whereas the consultation/home visit ratio in adjacent areas was 1:24.  Dr Yung’s explanation was that “a lot of the patients [he had seen] have their own family doctors to call to do their home visits”.

·      Consultation time

Dr Yung -

“would have needed 41.6 hours in a two day period based on a 10 minute consultation duration to have provided the services which he had billed to Medicare.  This time frame excluded - the time required for the additional 33 procedures performed on these two days, travel time to and from the surgery (20 minutes each way), meal breaks, sleeping time etc”.

Dr Yung was “adamant that outcome was important, that it could not be related to the length of a consultation... [item 23] did not make reference to time”.  Dr Yung “asserted that Professor Gordon’s practice would be so sufficiently different from his that she could not provide a suitably objective report... [and that] Professor Howie[’s] paper, originating in Scotland, could not have applicability to Australia”. 

But the Committee did not accept Dr Yung’s opinion:

“The Medicare statistics showed that Dr Yung claimed additional consultations at home on a regular basis on the days that he attended Kirrawee.  Allowing for the fact that he left home at 6.30 am and never returned before 11.30 pm, this seems to be an extraordinary claim for him to make.  On this point and at other times during the hearing it was difficult for the Committee to believe that he was speaking truthfully.  On numerous occasions during the hearing, and on an array of matters, he was not willing to answer questions in a meaningful way”.

·      After hours care

In his application for vocational registration, Dr Yung stated that he provided after hours services.  But he informed the Committee that the Kirrawee practice “provided neither after hours care nor a deputizing service...  [Only] approximately 30% of his patients were given his home telephone number”.  That number was not in the Yellow Pages.  It was listed in the White Pages under his name, but without the title “Dr”;  accordingly, a patient would have “but a small chance” of finding Dr Yung after hours.

·      Medical records

A sample of records from three days in June 1994 was examined, after Dr Yung had been given the opportunity to decide how the sample should be obtained, either by a random sampling technique or by any other method acceptable to him.  It was found that because of the very high numbers of winter viral infections in the sample it may have been unfair to Dr Yung to rely solely on this grouping.  A second sample, at a time of year when seasonal factors might not be as likely to skew the patient profile, was sought.  The Committee and Dr Yung “mutually agreed” upon 29 November 1994.

(1)   Patient summaries.  Of 111 records examined, 92 did not have an adequate summary.  Nineteen summaries seemed to be written by another person.  The RACGP Draft Entry Standard requires that 50 per cent of “recurrent” patients have a summary sheet.  A “high percentage” of Dr Yung’s patients on the day were “recurrent”.  The “overall standard of the clinical records examined was inadequate”.

(2)   Medicare billing.  Of the 91 records on the day, 75 consultations warranted Level B (item 23) “billing”, and the remaining 16 consultations should have been billed as Level A (item 3) consultations.  Yet, Dr Yung had claimed only 93 Level A consultations in a total of 15,502 consultations.  The Committee was “concerned about Dr Yung’s understanding and use of the Medicare Benefit Schedule for billing purposes”.

(3)   Prescribing.  The documentation supported the prescription of antibiotics in 7 out of the 17 cases where patients actually received antibiotics on that date.  In 10 cases, the Committee could not, on the documentation, find that they were “indicated”.  The Committee had “professional concerns” about Dr Yung’s prescribing habits.

As has been mentioned, the Committee also considered Dr Yung’s solicitor’s “final” written submission, dated 8 August 1995, made after the hearing had concluded.

The solicitor there said, (inter alia):

“The real issue confronting the Committee is whether or not the general body of vocationally registered general practitioners would consider ‘unacceptable’ Dr Yung’s style of practice whose features might be summarised as follows:

(i)         He worked at the Kirrawee practice medical centre on Mondays, Tuesdays and Thursdays from 7.00am until 11.00pm or later if required, usually without a break;

(ii)        On these days in the referral year he rendered up to 100 services on 21 occasions;  up to 120 services on 104 occasions and up to 140 services on 24 occasions.”

The Report stated:

“The Committee would take an alternate view i.e. the real issue is whether by his pattern of very long hours and very high patient numbers, Dr Yung was either unable or unwilling to fulfil his contractual and professional obligations as a vocationally registered general practitioner.

The Committee considered the question of whether a practitioner who:

·      makes no provision for ‘full-time’ after hours care for many patients;

·      has little idea of the concept of continuity of care;

·      has, by his pattern of home visiting, little responsibility to the immobile;

·      has no[t] demonstrated evidence of a commitment to preventive care;

·      produces records which are episodic without any concern for whole patient care.

could be considered to be acting as a Vocationally Registered General Practitioner as understood by the profession.

The Committee believed this was clearly not possible.”

Dr Yung’s solicitor went on in his submission to speak of the RACGP Draft Entry Standards:

“This document is written from the perspective of what might be regarded as traditional general practice.  It does not appear to have taken into account the differing nature of medical practice at Medical Centres.

In our submission this distinction is very relevant.”

But the Committee took the view that the site of practice is not relevant to the discussion:  it is the quality of practice which must be considered.

The solicitor submitted:

“...the relevance of the Interpractice Comparison survey is questionable.  We do not know whether the practices surveyed were of similar nature nor if medical centres were included.  We do not know for what purpose the patients consulted the general practitioners who responded to the survey nor whether the patients were chronically ill or say being treated for mere cuts and abrasions.”

Yet, according to the Committee:

“It may be that there is a place in the system for practitioners who wish to practise as does Dr Yung. The question is whether or not such practitioners can be considered as Vocationally Registered General Practitioners.  The Committee believes that they should not be so classified.”

The solicitor also disputed the statement in the Referral in which the Commission cited the criteria of the RACGP Draft Entry Standards that (for a consultation to allow quality care) an average time of not less than ten minutes was required.

But the Committee said:

“If a large sample of Vocationally Registered General Practitioners is of the belief that the average consultation time to allow for quality care is considerably greater than 10 minutes, it would seem to be correct to accept that figure in the absence of contrary evidence.”

(f)        The Determination

Division 5 (ss 106Q-106X) deals with determinations.  The Minister may appoint as the Determining Officer a person holding an office or appointment under the Public Service Act 1922 (s 106Q(1)).  Within seven 7 days after being given a Committee’s report, the Determining Officer must give a copy to the person under review (s 106R(1)).  If the report contains a finding that the person has engaged in inappropriate practice in connection with rendering some or all of the referred services, the Determining Officer must (a) make a draft determination in accordance with s 106U;  and (b) within fourteen days after receiving the report, give copies of that draft determination to the person and to the Director (s 106S(1)).  Within fourteen days of receiving the draft, the person under review may make written submissions to the Determining Officer suggesting changes to the draft (s 106S(3)).  After the expiration of that fourteen days, and within thirty five days after receiving the report, the Determining Officer must make a final determination in accordance with s 106U (s 106T(1)).  Failure to make the determination within the thirty five day period does not affect the validity of the final determination (s 106T(2)).

By s 106U(1) it is provided that a determination must contain one or more of the following directions:

·        That the Director (or nominee) reprimand the person under review.

·      That the Director (or nominee) counsel the person.

·      That the person repay to the Commonwealth an amount equivalent to any Medicare benefit paid for “inappropriate services”, whether or not the benefit was paid to the person.  (“Inappropriate service” means a service in connection with which the person is stated in the report to have engaged in inappropriate practice (s 106U(5)).

·      That the person be disqualified in respect of the provision of specified services.

·      That the person be fully disqualified.

In the present case, by letter dated 4 September 1995, the appellant, Anthony Adams, who was the Determining Officer appointed, provided a copy of the Report to Dr Yung.  By letter dated 22 September 1995, Dr Adams provided Dr Yung with a copy of his draft determination and an associated explanatory statement, and invited Dr Yung to submit suggested changes to the draft.

Dr Yung responded to the Report and the draft determination by letter dated 4 October 1995.  In his letter, Dr Yung disputed a number of the Report’s findings and reasons.  Dr Yung also stated that he had “reduced [his] working hours by 50% since March 1995... [and that he was] now continuing as a GP working 5 1/2 days a week (office hours) and intend[ed] to practice according to the RACGP”.  With respect to the draft determination itself, Dr Yung said:

“The determining officer has elected to impose all the options other than a reprimand.  I maintain that the appropriate penalty should consist of a reprimand and counselling.  As a condition of the reprimand, I am prepared to submit to a program designed by the [RACGP].”

By letter to Dr Yung dated 18 October 1995, Dr Adams acknowledged Dr Yung’s letter dated 4 October.  Dr Adams went on to say that, having considered Dr Yung’s comments, he then enclosed a final determination and associated statement of reasons (“the Determination”) dated 18 October 1995.

In the Determination, Dr Adams recited the Committee’s finding of inappropriate practice and directed that:

“i)        in accordance with... [s] 106U(1)(b) of the Act, Dr Yung be counselled by the Director of Professional Services Review or the Director’s nominee;

ii)         in accordance with... [s] 106U(1)(c) of the Act, Dr Yung pay to the Commonwealth the amount $42,130.50 being the amount equivalent to the medicare benefit paid for inappropriate services;

iii)        in accordance with.. [s] 106U(g)(i) of the Act, Dr Yung be disqualified 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 9 months; and

iv)        in accordance with... [s] 106U(h) of the Act, Dr Yung be fully disqualified for a period of 6 months.”

In his Statement of Reasons, Dr Adams gave, inter alia, the following as reasons for his Determination:

“1.       I noted that Dr Yung has been found to have failed in the rendering of his services to meet the standards expected from a general medical practitioner and a vocationally registered practitioner.

2.         I noted that Dr Yung had been counselled regarding his rendering of services by the Health Insurance Commission prior to the referral of his conduct and that his ‘lack of response to counselling, knowing what the consequences of such lack of response might be’ (i.e. the referral of his conduct) was incomprehensible to the Committee.  I also noted that Dr Yung disputes this and states that he has reduced his working hours ‘by 50% since March 1995’ and that he ‘quit the Kirrawee practice altogether in May 1995.  I am now continuing as a GP working 5 1/2 days a week (office hours) and intend to practice according to the RACGP’.  In addition, I noted that Dr Yung’s conduct was referred by the Health Insurance Commission to the Director of Professional Services of Review on 8 May 1995 and that the referral covered services he rendered from 1 January 1994 to 31 December 1994.  I formed the opinion that I could not take into account any change in conduct outside the period covered by the referral as that period was not relevant to the Committee’s consideration of Dr Yung’s conduct.

3.         I noted the Committee’s view that Dr Yung has practised for some ten years in an environment where financial considerations have taken precedence over quality patient care.  The high number of patients seen by Dr Yung in a day and the level of consultations claimed in respect of those patients led the Committee to express misgivings about the accuracy of his service billing.

4.         I noted that the Committee had cause to question Dr Yung’s truthfulness during its hearings into his conduct and that it had concerns about the standard of Dr Yung’s clinical records and his prescribing habits.”

(g)       The reference to the Review Tribunal

Part VA of the Act deals with Professional Services Review Tribunals.  Division 2 (ss 108-113) of this Part deals with the establishment of these tribunals.  The Governor-General may establish one or more tribunals (s 108(1)).  A tribunal shall consist of a President and two other members (s 108(2)).  The President of the tribunal must be a person who holds, or has held, judicial office (s 108(3)).

Division 3 (ss 114-121) of this Part deals with references to these tribunals relevantly as follows:

·      The person to whom a determination relates may request the Minister to refer the determination to a tribunal for review (s 114(1)).  The request shall state its grounds (s 114(2)).  Upon receipt of a request, the Minister shall forward the request to the President of a tribunal, together with a copy of the reference that gave rise to the determination, a transcript of the Committee’s proceedings, the Committee’s report and any documents sent to the Minister with that report, and the determination (s 115(1)).  The President shall arrange for the determination to be reviewed in proceedings before the tribunal, and shall notify the Determining Officer and the person to whom the determination relates accordingly (s 116).

·      That person may appear in person, or may be represented, at those proceedings, and that person or the representative shall be given the opportunity to address the tribunal (s 117).  Proceedings before a tribunal must be conducted with as little formality and technicality as a proper consideration permits (s 118(1)).  The procedure of a tribunal is subject to the Act and the Regulations, within the discretion of the President (s 118(2)).

·      A tribunal that reviews a determination in accordance with a request 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 (s 119(1)(a)).  The Tribunal “shall... 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 [s 160T] (s 119(1)(b)(ii))”.  The decision of the Tribunal is taken to be a determination of the Determining Officer (s 119(3)).

In the present case, by letter to the Minister dated 7 November 1995, Dr Yung’s solicitor requested a review of the Determination, stating the following grounds:

“(i)      that breaches of the rules of natural justice occurred in connection with the making of the final Determination;

(ii)        that procedures that were required by law to be observed in connection with the making of the Final Determination were not observed;

(iii)       that the making of the Final Determination was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(iv)       that the Final Determination involved errors of law;

(v)        that there was no evidence or other material to justify the making of the Final Determination;

 (vi)      that the Final Determination was otherwise contrary to law;  and

(vii)      that the directions made by the determining officer pursuant to Section 106U of the Health Insurance Act 1973 were excessively harsh and punitive.”

A Tribunal (“the Tribunal”) constituted by the Hon. Mrs Margaret Lusink, President, Professor Priscilla Kincaid-Smith and Dr Peter Joseph, Members, heard the matter on 9 and 25 July 1996.

(h)       The Tribunal’s decision

On 7 August 1996, the Tribunal decided that the Determination be varied by setting aside directions (i), (ii) and (iii), but affirming direction (iv), for reasons which may be summarised as follows:

·      President Lusink noted that the powers of the Tribunal were restricted to affirming or setting aside the Determination, or making any other determination which the Determining Officer is empowered to make;  and that the Tribunal’s decision is deemed to be a decision of the Determining Officer.  The President also noted that the review was limited (by s 119(1)(a)) to deciding the matter on the papers before it.  She went on to refer to the observations of Davies J in McIntosh v Minister for Health (1987) 17 FCR 463 (at 467), that a medical services review (under the legislative precursor of the present Act) had -

“a much wider function than that [of a judicial review]... [and] [s]ave that the Review Tribunal was limited to reviewing the documentary material, taking into account the addresses made to it, it was entitled itself to reconsider any matter contained in the report and recommendation of the Committee of Inquiry.”

·      The President cited observations by Davies J in Jebb v Repatriation Commission (1988) 8 AAR 285 (followed by Hill J in Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 (at 521)) that the role of a tribunal should be seen as “part of... [an] administrative continuum”.

·      President Lusink went on to note that the Tribunal had rejected a preliminary argument advanced by counsel for Dr Yung, with the Tribunal holding, in accordance with Minister for Health v Thomson (1985) 8 FCR 213, and the other cases, that the Tribunal had no power to admit fresh evidence.

·      In the course of dealing with the issues, the President said:

“35.     One view on the authorities is that this Tribunal is bound by the finding of the Committee that Dr Yung has practised inappropriately within the meaning of the legislation.  In any case, having taken into consideration all matters which we are directed to do in order to exercise our function under section [119], we have independently concluded that the decision of the Committee is the correct one.  That is not to say that we agree with all aspects of the Committee proceedings or its report on its findings.”

The President then addressed the Determination:

“36.     As to the determination, we believe that the Determining Officer in the circumstances had an unenviable task, being confined as he was to the report of the Committee.  It is the view of this Tribunal that both the Committee and the Determining Officer have been disadvantaged and their jobs made much more difficult due to the lack of directions (save as to sampling, which are extremely complex), regulations, guidelines or terms of reference.  They were also working within new legislation which may still need refinement.  In all the circumstances, it is our decision that the determination should be set aside, save for the directions as to total disqualification.

37.       The decision now substituted is a substantial detriment to the practitioner, disqualification having as it does a large financial component and involving re-arrangement of his professional life for a period of time.  The commencement date of the disqualification period has taken this into account.  It may have been that in other circumstances, a determination involving repayment of moneys would also have been considered, however account has been taken of the long but unavoidable delay, legal expenses incurred, and the less tangible personal consequences the determination will have on a doctor coming from another cultural background.  Whilst noting the submission that Dr Yung would be prepared to be reprimanded and to attend counselling, this is not considered to be required.  In any case, given that there was an agreement between two companies regarding the medical ;practice of Dr Yung at Kirrawee, it may be that the Act does not permit orders to reprimand or counsel the applicant anyway.”

Professor Kincaid-Smith agreed with the President, and added some comments as follows:

“39.     I believe there is sufficient evidence in the material provided for me to agree with the Committee’s finding that ‘Dr Steven Yung engaged in inappropriate practice unacceptable to the general body of general practitioners’.  I base this largely on the fact that during the period under review the number of patients seen by Dr Yung was above the 99 percentile of that recorded for other general practitioners over that period.  This means that for all the services provided his overall time spent with a patient was less than 10 minutes.  While it is quite acceptable to see some patients for less than 10 minutes, this average cannot be maintained in my view without it amounting to inappropriate practice.  Further evidence of inappropriate practice is seen in the large numbers of radiographs which he carried out and the small number of positive x-rays which this yielded.  This means that he was doing too many x-rays either because of the profit incentive, as these are highly rewarded, or because the time he took to see patients was too short to enable him to determine who did or did not need an x‑ray.”

·      However, Professor Kincaid-Smith went on to criticise the Committee’s Report in a number of respects, as “reflect[ing] a focus on matters of no relevance...”.  She said, inter alia, that it was “inappropriate” for the Committee to quote draft standards “which certainly had no status at the time in question, and [which] Dr Yung could not be expected to know about”.

On the subject of “[w]orking hours”, the Professor said:

“I cannot agree with the Committee’s implication that 16 hours of work a day for a man of Dr Yung’s age is ‘inappropriate practice’.”

·      Dr Joseph also agreed with the decision.  He noted that some newly established clinics had utilised the system whereby a higher rebate was paid for services between 8.00 pm and 8.00 am;  and that the profitability of the new clinics was maintained by providing services that were brief and often repetitive.  Dr Joseph said:

“48.     Medically safe and medico-legally safe medicine requires the allocation of sufficient time for patients to provide a relevant history, to be examined, for a diagnosis to be established if possible, investigations to be ordered or performed if required, and a management plan to be established and administered with the patient’s informed consent.  This is a professional constant which does not depend on location or style of practice.

49.       The profession has co-operated with the... Commission and with Government to establish the Professional Services Review Scheme with a view to identifying ‘inappropriate practice’.  The identification of what is appropriate is made by practitioners in the same discipline.  It is against this background that the... Committee... held its investigation and delivered its report.  While its methods have been subject to critical comment, its finding that Dr Yung had provided inappropriate services is supported by this Tribunal.

50.       An interesting question that has been raised in Dr Yung’s defence is that the Committee did not represent his peer group - this should have been practitioners working in a similar clinic.  In my view this can never be an acceptable proposition as the legislation dictates that the conduct must be examined by the ‘general body’ of the members of the specialty or profession in which the practitioner was practising.

51.       Nor do I believe that a lesser standard of appropriate professional behaviour can be accepted from doctors who are not vocationally registered but who practise as general medical practitioners.  Vocational registration requires that a doctor with appropriate experience or qualifications undertakes continuing education, and accepts responsibility for the after hours care of all patients seen either personally or by proxy.”

THE “APPEAL” TO THE FEDERAL COURT

Division 5 (ss 124-124A) of Part VA deals with appeals from Tribunals.  A party to a proceeding before a Tribunal under Division 3 may appeal, on a question of law only, to this Court from any decision of the Tribunal in that proceeding (s 124A).

By his notice of appeal filed in this Court on 30 August 1996, Dr Yung appealed from that part of the decision of the Tribunal affirming direction (iv).  Dr Yung sought declarations that the Report, and the Determination, were void;  an order setting aside the Tribunal’s decision;  an order that the Tribunal decide that the Determination be set aside;  or alternatively, an order remitting the matter to a differently constituted Tribunal for further consideration according to law.

THE DECISION AT FIRST INSTANCE

Davies J ordered that the decision of the Tribunal be set aside, and that the proceedings be remitted to the Tribunal, differently constituted, to be heard and decided again.  His Honour’s reasons were as follows:

Natural justice

The appeal was limited, his Honour noted, to questions of law.  A question of law was whether procedural fairness, or natural justice, was required to be provided to Dr Yung in the Tribunal;  and if so, whether this was done by the procedures adopted by the Tribunal.

Davies J said that, being “in effect disciplinary proceedings”, substantial procedural fairness should have been afforded, that is, Dr Yung should have been given (a) adequate notice of the findings which might have been made against him;  and (b) an adequate opportunity to respond.

His Honour applied observations made by Burchett J in Romeo v Asher (1991) 29 FCR 343, in connection with a reference to a Medical Services Committee of Inquiry under earlier legislation in relation to a question of excessive servicing (at 362) that the affected practitioner “is entitled to particulars”.  Davies J noted that s 102(3) now requires that particulars be given before the Committee hearing, as we have seen.

Having referred to observations to the same effect in a similar context by Smithers J (Lockhart J agreeing) in Freeman v McCubbery (Full Court, 10 October 1985, unreported), Davies J said:

“In Freeman v McKenzie (1988) 82 ALR 461 at 471-2, Woodward J indicated means by which a committee could provide procedural fairness to a medical practitioner where the investigation concerned 6000 services to more than 1600 patients over a period of two and one half years.  His Honour referred, inter alia, to the selection of manageable topics for inquiry, to the giving of particulars and to the selection of particular consultations for detailed inquiry.  Later, in Romeo v Asher, Morling & Neaves JJ, Burchett J dissenting [on the facts] held that it was not necessary in the circumstances of the case that particulars be provided and that the investigative inquiry which had been undertaken had provided procedural fairness.  However, in that case only 20 patients had been referred to in the reference, the services were clearly identified and the patients were well known to the medical practitioners.  Their Honours accepted the general principles of procedural fairness I have set out.”

Davies J went on to hold that although the present Part VAA had replaced the legislation considered in the earlier cases, the repeal of the earlier s 96B of the Act did not constitute the expression of a statutory intention contrary to the implication of the principles of procedural fairness.  It followed, in his Honour’s view, that -

“...although the process undertaken by a Professional Services Review Committee is essentially investigative and the Committee does not in itself make an order of a disciplinary nature, the principles of natural justice apply so that, except in a simple case where the ambit of the investigation and the subject matter of possible findings are defined by the reference which has initiated the inquiry, the Committee should at some stage make it clear to the... 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.  The... practitioner should be given a fair opportunity to explain why those findings should not be made.”

His Honour said that compliance with the requirement of s 102 that the notice of hearing “must give particulars of the matter to which the hearing relates” did not end the Committee’s responsibility to provide information in the nature of particulars.  At the beginning of the inquiry, the Committee may well not have formulated likely or possible findings or the grounds upon which they might be made.  As the inquiry proceeded, the Committee should, his Honour said, give such further particulars or information of a like nature as is necessary to make it clear to the practitioner what are the matters to which a response should be made.

Inappropriate practice

Davies J said:

“Because the proceedings are of a disciplinary nature, it clearly would not be appropriate for a decision maker merely to conclude that the medical practitioner engaged in inappropriate practice some time during the period which is specified in relation to some of the referred services.  The services in respect of which the finding of inappropriate practice is made must be identified.  I do not suggest that, where 17,331 services were the subject of the reference, it was necessary for the decision makers to examine each and every service and to make a finding of  ‘inappropriate practice’ about each.  When dealing with issues of excessive servicing, the Court has rejected that approach and has taken the view that if, for example, 3 attendances would have been sufficient during a period to deal with a particular complaint, whereas the medical practitioner attended the patient 6 times, then a finding of excessive servicing could be made without identifying which of the 6 attendances were excessive.  See eg. Taylor v Minister for Health (1989) 23 FCR 53 at 58-9.  But what must be done is to examine at least an appropriate sample of services in detail, to identify the elements of ‘inappropriate practice’ arising from the services in that sample and to apply the findings statistically to the whole of the referred services, provided of course, that it be statistically valid to do so.”

The Referral

His Honour said:

“...the referral turned its attention to a relevant matter, namely, whether Dr Yung had given the appropriate level of clinical input in the services which he had rendered.  However, the referral contained an inherent defect.  The concern of the Commission that the appropriate level of clinical input could not be maintained on a regular and continuing basis for the long hours worked by Dr Yung could not readily be translated into an allegation of ‘inappropriate practice’ in relation to specified services.  The fact that Dr Yung saw what was considered to be an excessive number of patients a day was not a basis for concluding that Dr Yung gave inadequate care and attention to all his patients, to any particular proportion of patients or to any particular patient.  Where, as in the present case, a referral relates to all the services rendered by the medical practitioner within defined premises, it may be difficult to investigate the matter referred unless the content of the reasons for referral shows that the cause of the concern is a matter relating to all patients, such as inadequate or dirty premises or records which were wholly inadequate or some like matter.  That was not the present case.”

Davies J observed that it was not said by the Commission that there was any rule of practice that a medical practitioner should not see more than a stipulated number of patients a day or that the practitioner must spend at least a stipulated number of minutes with each patient.  However, (as we have seen) Davies J noted that in its reasons for referral, the Commission cited the draft standard developed by the RACGP in December 1993, which read, inter alia:

“The Consultation and Communication

The Consultation is the focus of the delivery of general practice care.  Patient satisfaction with the consultation is a significant contributor to quality care.  A key determinant of patient satisfaction is the quality of communication occurring during the consultation and the amount of information provided to patients.

STANDARD

1.2                   The practice provides the opportunity for patients to communicate their health problems and concerns and receive an appropriate response.

CRITERIA

1.2.2                Consultation times are long enough to allow quality care.  This means that average times are not less than 10 minutes.  Actual times for individual appointments will vary according to clinical need.

INDICATORS

The average number of patients seen by each doctor in a four hour session does not exceed 24 (appointments schedule).

After each consultation the doctor routinely checks that the patient believes that their needs have been met and that the patient has understood the doctor’s advice (doctor interview, patient survey).

Patient feel that they have not been rushed when having a consultation (patient survey).

Patients report that their condition is discussed enough with them and that words and explanations used by the doctor are easy to understand (patient survey).”

His Honour commented that at the time of the alleged inappropriate practice, that standard was a draft, and had not been adopted as a formal standard.  Yet, the primary Judge said, even had the standard been adopted and had Dr Yung been aware of it, which was not the case, the Commission suggested no means by which reference to the standard could show that Dr Yung had failed in his professional duties in the treatment of any particular patient or patients.

His Honour noted that in the Referral reference was made to 15,388 Level B consultations under item 23 of the General Medical Services Table, and that these consultations formed, by far, the majority of the 17,331 services rendered by Dr Yung.  Item 23 is as follows:

“Professional attendance at consulting rooms (not being a service to which any other item applies) by a general practitioner involving taking a selective history, examination of the patient with implementation of a management plan in relation to 1 or more problems, or a professional attendance of less than 20 minute duration involving components of a service to which item 36 or 44 applies - each attendance - $24.30.”

Davies J observed that the Commission did not purport to identify any particular service in respect of which the item may have been inappropriate and it did not in its Referral suggest that there had been overservicing;  and although the Commission attached statistical material to its Referral, it did not engage in or recommend a process of sampling.  His Honour noted that the Act at the time provided stringent safeguards with respect to the use of a sampling technique (see ss 106H-K).

His Honour went on to say:

“Because the Commission’s concern was that an appropriate level of clinical input could not have been maintained by Dr Yung during the long hours in which he attended patients, the Commission’s referral did no more than point to a fact which suggested that inappropriate practice in the nature of insufficient clinical care in relation to at least some of the services would have occurred.  The Commission’s referral suggested, in effect, that Dr Yung was a ‘suspicious person’.

Dr Yung would have been unable to glean from the referral what were the details of inappropriate care which he ought to answer.  It is common for a referral by the Commission to set out what are, in effect, the allegations in respect of which the disciplinary proceedings are brought.  That did not occur in this case.  Unless examples of cases in respect of which it is alleged that the medical practitioner has failed to provide a sufficient level of clinical input are pointed to, so that the medical practitioner can analyse and explain what occurred and thereby respond to the allegation of inappropriate practice, it is almost impossible for a medical practitioner to deal with the matter.”

The Committee

His Honour said:

“The Committee did not formulate charges or allegations for Dr Yung to answer but simply called a hearing and, at the hearing, called Dr Yung and Dr Gooley, the senior partner in the practice in Kirrawee, which Dr Yung had by then left, to give evidence.”

Referring to the Committee’s letter to Dr Yung dated 26 June 1995 outlining the general sequence of events for the hearing on 14 July 1995 (cited above), Davies J said that neither the Referral nor this letter made it clear to Dr Yung what were the matters to which he should turn his attention, and the letter did not indicate any specific issue to be addressed.

His Honour referred first to evidence given by Dr Yung to the Committee that Dr Yung was, in essence, “quite satisfied with the quality of care he had provided”;  and secondly, to evidence by Dr Gooley to the Committee that “Dr Yung is an exceptionally competent caring medical practitioner whose patients would come and insist on seeing him and no-one else”.

Turning to the general criticism of Dr Yung made in the Report, Davies J said:

“...the Committee did not relate these comments to specific services but rather to the nature of Dr Yung’s practice as a whole.  ...[A] Committee established under the Act is not concerned to discipline medical practitioners with respect to the general nature of their practice.  The Act is concerned with medical benefits.  [It] provides for disciplinary action and for proceedings to be taken in relation to services in respect of which medical benefits were paid or payable.  Having regard to the provisions of the Act... at the time, I would have expected in the present case that any finding of inappropriate practice in the nature of insufficient care and attention would be related to identified services, save where it was appropriate to adopt a proportion, as where a sampling process was undertaken in accordance with s 106G to s 106K of the Act, in which case the sampling procedure adopted would identify the class or proportion of cases to which the findings drawn from an examination of a sample could be applied.”

His Honour next considered eleven specific findings made by the Committee as follows:

“It is plain from [these findings] that the Committee’s attention was directed to issues many of which were distinctly different from the Commission’s concern whether, in the services performed, Dr Yung provided ‘an appropriate level of clinical input’.  The discussion of the lack of home visits and the discussion of the lack of an after hours service between 11pm and 7am are clear examples of the point.  It was, in my opinion, a wholly or largely irrelevant consideration that Dr Yung did not provide such services.  If Dr Yung’s practice in connection with the rendering of services in respect of which benefits were paid was appropriate, it mattered not that other medical practitioners would, in the course of their practices, have attended many more home visits and would have provided an after hours service between 11pm and 7am.  These matters were not within the ambit of the reference.  Of course, the Committee may have taken these matters merely as indicating Dr Yung’s lack of interest in and care of his patients.  However, the Committee’s report suggests that these matters were regarded as aspects of ‘inappropriate practice’.”

Davies J extracted the following findings from the Report:

“that [Dr Yung] practised episodic rather than continuing care

that he failed to provide preventive care

that his medical records were of poor quality

that he overclaimed Level B consultations

that he was incompetent

that he provided only a minuscule level of home visiting

that he failed to give proper professional attention to patients

that he failed to provide an after hours service between 11pm and 7am

that he overprescribed antibiotics

that he did not practice as a vocationally registered general practitioner should do and that he should not be so classified

that his conduct would not be acceptable to the general body of vocationally registered general practitioners.”

His Honour observed that the following specific allegations were not mentioned in the Referral and were not formulated in writing by the Committee for Dr Yung to answer:

“that [Dr Yung] was incompetent

that he failed to provide preventive care

that his medical records were of poor quality

that he overclaimed Level B consultations

that he provided only a minuscule level of home visiting

that he did not provide an after hours service

that he overprescribed antibiotics

that he should not be classified as a vocationally registered general practitioner.”

Davies J said:

“In the course of the evidence of Dr Yung, questions were asked about a number of patients who had been treated in May and June.  However, these patients ultimately did not feature in the Committee’s report, presumably because the Committee chose a date, 29 November 1994, to look at and did not examine those records in detail until after the hearing had concluded.  Dr Yung did not have an opportunity to deal with any queries which the Committee had arising from those records.  A feature of the Committee’s report is that there was no finding made of inappropriate practice in relation to any identified patient and there was no suggestion that any patient had ever complained of Dr Yung’s treatment.  Nor for that matter was it explained why Dr Yung was such a popular doctor.

In the result, I am satisfied that Dr Yung did not in general receive procedural fairness at that stage.  There may be some small individual findings of the Committee which could be supported because they were raised orally with Dr Yung and he had an opportunity to answer them.  However, I have not considered the whole of the proceedings in sufficient detail to determine whether that is so.”

In his Honour’s opinion, there were three major flaws in the Committee’s proceedings and the Report:  (1) Dr Yung was not accorded procedural fairness;  (2) The Committee “made global findings either of or relevant to ‘inappropriate practice’ without relating those findings in any meaningful way to the referred services”;  (3) The Committee did not state clearly what were the findings of ‘inappropriate practice’ which it made.

The primary Judge added:

“In a finding of ‘inappropriate practice’, the number of patients seen by Dr Yung per day would only be a relevant factor, an indication that such a practice may have occurred.  Other factors would be whether patients were satisfied or dissatisfied with their treatment, whether Dr Yung’s treatment had been shown to be faulty and so on.  The Committee did not approach the matter in this way.”

Determining Officer

Davies J said that the Determining Officer, in para 2 of his reasons (cited above), appeared to have misapprehended his powers.  His Honour said:

“...the Determining Officer was not limited to events which had occurred during the referral period.  The function of the Determining Officer was to make a determination and to impose the disciplinary direction or directions.  In determining which direction was appropriate, the Determining Officer was entitled to take into account whatever the... practitioner had to say on the point.  I presume that the Determining Officer would not receive further evidence as such.  But the Determining Officer is entitled to take relevant information into account.  In fact, the Determining Officer did not receive such information.  The Determining Officer took into account a letter from the... Commission dated 7 September 1995, which provided data on Medicare benefits relevant to the services rendered by Dr Yung from 1 January 1994 to 31 December 1994.  In my opinion, the Determining Officer was entitled to take into account matters such as whether Dr Yung had changed his ways and reformed the nature of his practice.”

After referring to Clyne v NSW Bar Association (1960) 104 CLR 186 (at 201-2) and NSW Bar Association v Evatt (1968) 117 CLR 177 at (183-4), Davies J said:

“...directions under s 106U with respect to a reprimand, counselling, the repayment of benefits and disqualification are not imposed as a punishment.  They are imposed with a view to protecting patients and the Commonwealth against abuse of the system.  Any reformation which the medical practitioner has made in the nature of his practice therefore is a highly relevant factor to which regard should be had in exercising the discretion which s 106U confers.”

His Honour went on to say that although the Determining Officer was not limited in his consideration solely to the Committee’s findings, he was not entitled to consider further evidence from Dr Yung:  practitioners are specifically limited (by the Act) to putting forward submissions as to changes to the draft determination.

Professional Services Review Tribunal

Davies J said:

“As s 119 shows, the Tribunal has the function of reviewing the matter on its merits but must do so having regard to the grounds set out in the request and on the papers, that is to say upon the documents forwarded to the Tribunal under s 115(1) of the Act.  Insofar as the Tribunal makes adverse findings against the... practitioner, the Tribunal should be satisfied that the findings are relevant for the purposes of the Act, that the findings are within the ambit of the reference by the... Commissioner which initiated the process, that the... practitioner has had a fair opportunity to answer the allegations made against him or her and that the findings which the Tribunal makes are fairly based on the material before it.

If the Tribunal is satisfied that the findings stated in the determination should not be made on the material before the Tribunal or if the Tribunal is satisfied, after perusing the transcript of the proceedings before the Tribunal, that the... practitioner was not given a fair opportunity to answer the allegations which were made against him or her, then the Tribunal is entitled to set aside the determination.  The Act does not require the Tribunal to make another determination.  It may affirm the determination, set it aside or set it aside and make another determination.”

His Honour rejected Dr Adam’s submission that a Tribunal had no power to reconsider the Committee’s findings with respect to inappropriate conduct, and that its only power was to review the determination of the Determining Officer.  Davies J said:

“...the order of a... Tribunal must be directed to affirming or setting aside and substituting other directions for those set out in the determination.  However, in performing that function, the whole matter is open to the Tribunal, although it must come to its decision on the papers before it.  This was explained in... Thomson [above];  McIntosh [above] and Tiong v Minister for Community Services & Health (1990) 93 ALR 308.  Such changes as have occurred in the legislation have not changed the role of the final Review Tribunal.  It is because of the importance of the function which a... Tribunal performs, that it is required to have as its President a person who is a judge or who has held judicial office.”

His Honour said that it was “not inconsistent [with the legislative scheme] that a ... Tribunal should make findings of inappropriate practice before going on to consider what... directions should be given under s 106U”.

Davies J adopted observations by Pincus J in Tiong v Minister for Community Services and Health (1989) 87 ALR 723 (at 732-3) that “the central task of [a] Tribunal... is to determine whether, on the evidence before the [C]ommittee, its conclusions are factually correct.  But in performing that task, [the Tribunal] may take into account the opportunity or lack of opportunity for explanation of his or her actions accorded to the doctor concerned.  If the [T]ribunal was satisfied, as to a particular service, that the doctor whose conduct was in question had had no reasonable opportunity to explain his or her case, then... it would have power to vary the... determination accordingly”.

His Honour said that it was the function of the Tribunal to consider the whole matter for itself and to do so on the papers.  Its duty was to review the matter for itself and independently to arrive at its own conclusions.

Turning to the Tribunal’s reasoning, Davies J said:

“It is clear from the reasons of the President that she concluded that the decision of the Committee that Dr Yung had practised inappropriately within the meaning of the legislation was correct but that she did not agree with all aspects of the Committee’s proceedings or its report and findings.  The President, however, gave no reasons for that conclusion.”

With respect to the reasons of the other Tribunal Members, his Honour said:

“It is unfortunate that Professor Kincaid-Smith, who focussed her attention on essential issues, went on to come to certain adverse conclusions about radiology.  Once again, the principles of natural justice were not complied with.  No allegation had been formulated against Dr Yung with respect to radiology.  He did not have an opportunity to answer this challenge, for the allegation had not previously been made.”

Of Dr Joseph’s reasons, Davies J said:

“... Dr Joseph did not relate his finding that insufficient time had been allocated to any particular service or any class of service or any proportion of service.  Although the word ‘some’ is expressed in s 106S, if a finding of inappropriate practice refers to only some of the referred services it must identify the relevant services either by naming them or identifying them in some relevant way, as by the statement of a particular proportion.

... when [as here] disciplinary proceedings are brought against a practitioner under the Act, the disciplinary proceedings should be directed to the service or services in respect of which the Commonwealth has a legitimate complaint.  The Commonwealth does not have a legitimate complaint if a... practitioner chooses to work harder than most other practitioners whilst giving due care, skill and attention to his or her patients.  It would not have been open to the Tribunal to hold that Dr Yung engaged in inappropriate practice, in the sense of failing to exercise due care, skill and attention, in respect of every one of the 17,331 services which Dr Yung provided at the Kirrawee practice during 1994, or even every one of the 15,388 Level B consultations.  Particularly is this so when there was no evidence that any patient had ever complained of the service which Dr Yung provided.”

His Honour said that he was satisfied that the Act implied a duty on the Tribunal, when giving its decision to state its findings, to explain the reasons for its findings and for its decision and to refer to the material on which the findings were based.

Davies J held that the Tribunal’s decision must be set aside, since reasons were “quite inadequate”, so that an inference could be drawn that the Tribunal had made an error of law as to the issues which it had to decide.  Otherwise its decision would have dealt fairly and properly with the issues.  A further error of law lay in the Tribunal’s failure to (a) identify the inappropriate practice(s) clearly;  and (b) relate any finding of inappropriate practice to an identified service(s).  Another flaw, especially in the earlier stages of the process, was the failure to give Dr Yung adequate notice of the allegations and a fair opportunity to respond.

Relief (Orders)

His Honour noted first, that counsel for Dr Yung had declined to apply to amend “so as to challenge the decision of the Committee and the determination of the Determining Officer” (presumably by adding them as parties);  and, secondly, that counsel for Dr Yung had submitted that in an appeal under s 124A of the Act, this Court had power to declare that decision and determination void.  But Davies J held that the fact that, if they had been challenged, they may well have been declared void, does not render the Tribunal’s decision a nullity, since an administrative decision remains valid until declared invalid by a competent court.

His Honour said:

“The proceedings are in form an appeal from a decision of the Tribunal.  Although the orders sought include a declaration that the report of the... Committee is void and a declaration that the determination of the Determining Officer is void, those decisions should, in my opinion, if directly challenged, have been challenged by proceedings brought under the Administrative Decisions (Judicial Review) Act 1977... or under s 39B of the Judiciary Act 1903...  Such declarations are inappropriate in proceedings brought under s 124A of the Act.  It is not that the Court lacks power to deal with the matter but rather that, if those decisions are to be challenged, the challenge should be brought in due form and, presumably, in due time.  [Counsel for Dr Yung] rejected the suggestion that the proceedings should be amended to challenge the decisions of the Committee and of the Determining Officer.  That being so, I shall deal with the proceedings on the footing on which it was brought, namely as an appeal under s 124A of the Act against the decision of the Tribunal.”

Having indicated that he proposed to remit the matter, Davies J said:

“The [differently constituted] Tribunal can then [see] all the material before it.  If there is a proper basis on which to make a finding in respect of inappropriate practice in relation to one or more of the relevant services, that finding can be made.  If there is not a proper basis on which to make a finding of inappropriate service in relation to specified services, then the Tribunal should set aside the determination of the Determining Officer.”

DR ADAM’S ARGUMENTS ON THE APPEAL

By his amended notice of appeal, Dr Adams now seeks, in lieu of the orders made at first instance, an order that Dr Yung’s appeal from the Tribunal’s decision be dismissed for reasons which counsel summarised as follows:

The Referral - the Commission’s powers

On the true construction of the Act -

·      It is not necessary that a referral contain examples of individual cases.

·      Although a referral must specify “services”, it need not specify “conduct”.

·      Since the Commission has no power to go beyond the statistical analyses and counselling data available to it, it is not open to the Commission to conduct a preliminary investigation.

The Committee’s powers and duties

On the Act’s proper interpretation -

·      The Committee’s investigation must relate to the referred services.  But its investigation is not confined by any observations about conduct made by the Commission in its reason for referral.

·      Alternatively, if the Committee is so confined, then the expression “appropriate level of clinical input” (used by the Commission in its reasons) is wide enough to encompass the matters investigated.

·      The Committee is constituted by a peer group as required by s 95 (the composition of earlier Medical Services Committees of Inquiry (“MSCI”) may be contrasted with the present scheme in this respect).  Accordingly, the Court should be slow to interfere with the Committee’s findings.  (Reliance is placed upon the Full Court decision in Peverill v Backstrom (1994) 54 FCR 410).  It was not open to the trial Judge to “substitute a finding that [Dr Yung] gave ‘due care, skill and attention’ to his patients”.

·      Dr Yung was vocationally registered.  Virtually all the referred services were consultations at the vocationally registered rate.  The Committee correctly assessed conduct against the standards expected of a vocationally registered GP.

·      The Committee is not required to investigate and report on individual services.  Even under the earlier scheme, which required the MSCI to identify excessive services (under the repealed s 104), it was not necessary to make findings in respect of specific services.  (Reliance is placed upon the decision of Pincus J in Taylor v Minister of State for Health (1989) 23 FCR 53 (at 60-2).)

·      The Committee must afford natural justice, but it did so.  Any criticism of the Committee in this area was principally based upon an assumption (which should not be accepted) that it was required to report on individual services.

The Determining Officer’s powers and duties

On the proper construction of the statute -

·      The Determining Officer is, by virtue of the provisions of s 106S, bound by the findings of a Committee on inappropriate practice;  and, accordingly, does not review the Committee’s transcript or the exhibits.  His Honour’s observations to the contrary should not be accepted.  (His Honour had said that “[i]t would not be inappropriate for the report to be accompanied by the transcript of the proceedings and the documents received in evidence, nor for the Determining Officer to have regard to that material”.)

The Tribunal’s powers and duties

Upon the true interpretation of the Act -

·      The Tribunal’s function is to review the determination.  It has no power to review the Committee’s finding on inappropriate practice.  It has power to set aside the determination, but not the Committee’s finding.  The Tribunal considers the Committee’s report, transcript and exhibits, but for the purpose of deciding what determination, if any, it should make.

·      If it be held, contrary to the above argument, that the Tribunal is required to form its own view on inappropriate practice, then the Tribunal here did so.

The Tribunal is not bound to give reasons, but in any event it did so here, and it identified the conduct which supported its decision.  His Honour’s criticism of the Tribunal’s reasons and his inference that those reasons failed to identify the issues it was required to determine, are based on the view (which should not be accepted) that the Tribunal was bound to consider, and identify, individual services;  but that requirement was deliberately removed from the current review scheme.

DR YUNG’S NOTICE OF CONTENTION

By his notice of contention Dr Yung contended that, in addition to the reasons given by the learned primary Judge, there were further flaws in the Tribunal’s decision as follows:

·      The Tribunal’s reliance on an “unrepresentative” and non-statutory sampling of services.

·      The “manifest unreasonableness” of the Tribunal’s affirmation of the maximum period of disqualification of Dr Yung.

With respect to the Tribunal’s reliance on “impermissible” sampling, counsel for Dr Yung referred in argument to the legislative scheme in this area to the following effect:

·      Section 87(1) requires that a referral specify whether it relates to (a) “specified services” or (b) services (in effect) classified by type, patients or location.  In outlining the contents of Division 4 of Part VAA, s 80(4)(c) states that Subdivision C (ss 106G-K) deals with “how Committees may use samples of services to base their findings”.  Section 106G provides that Subdivision C applies to the Committee if the referral is expressed to relate to services (a) of a specified class;  (b) provided to a specified class of persons;  (c) provided within a specified location (that is, services of the kind described in s 87(1)(b), but not those described in s 87(1)(a)).  Where sampling is permitted, ss 106H and 106J contain “stringent safeguards”, as his Honour said, including the use of an expert protocol and the right of a doctor to insist upon a Committee extending a sample or “addressing all of the referred services”.

On behalf of Dr Yung, it was contended that the Act will not permit the specific provisions of Subdivision C to be avoided by the use by the Committee of generally expressed statutory powers.  Reliance is placed upon observations in Saraswati v The Queen (1991) 172 CLR 1 (at 18, 23-4, 30);  and in Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 (at 171-2, 181).

It is contended that this Committee made no attempt to examine all of the referred services;  that its general findings were based on an informal sampling and examination of only some of the referred services, being those tendered on 29 November 1994;  and that this date was not “mutually agreed”, as was stated in the Report.  Reliance is now placed by Dr Yung upon the observation of Professor Kincaid-Smith that the sample of records which the Committee chose to use was “in no way a random sample”.  The Professor and his Honour both found that the Committee did not follow the statutory statistical sampling procedures.

It was then submitted that, given these departures from the statutory requirements for an investigation based on sampling, it was not open in law for the Committee or the Tribunal to make findings of fault under s 106L(1).

On the “manifest unreasonableness” of the maximum disqualification, it was contended for Dr Yung that the unexplained imposition of the maximum disqualification in the context of the “clearly mitigating circumstances” (of “an impeccably normal general medical practice”), raises an inference that the Tribunal must have misunderstood the “sentencing” principles to be applied to the statutory range of penalties provided in s 106U.

CONCLUSIONS ON THE APPEAL

It will be convenient to consider the questions of statutory interpretation which arise;  and then to consider how those questions relate to the present circumstances, noting that there is no real dispute about the facts, so that the issues arising on the appeal are questions of law only.  It will be necessary to proceed in stages, bearing in mind that the issues before the primary Judge included a claim by Dr Yung for orders (1) declaring that (a) the Report, and (b) the Determination were void;  and (2) setting aside the Tribunal’s decision.  In other words, it will be necessary, in the first instance, to examine the legal status of each step taken in the review process;  and then to consider his Honour’s approach on these specific matters and on the matter generally.

(a)       The Referral and the Director’s decision to set up the Committee

Although it has not been suggested that either the Referral or the Director’s decision to set up the Committee, were in any respect invalid, their proper place in the statutory context and their true function, should be examined before considering the proper functions of the Committee, the Determining Officer and the Tribunal.

When Division 3 of Part VAA is read as a whole, it appears, as s 80(1) has outlined, that a scheme is created under which a person’s conduct can be examined to ascertain whether “inappropriate practice” is involved;  and under which action can be taken in response.  The subject of the Commission’s referral to the Director is the carriage of that examination.  In other words, instead of carrying out that examination itself, the Commission refers it to the Director.  Section 86(1) opens with the words “refer... the conduct...”.  However, the language of paras (a) and (b) “whether the person has engaged in...” makes it clear that what is referred is not simply “the conduct”, but the question whether the conduct may be characterised as being engaged in “inappropriate practice”.

The conduct to be examined for this purpose must have been rendered during the two year period mentioned in s 86(2).  The Referral, dated 8 May 1995, and referable to the year commencing 1 January 1994, complies with this requirement.

If a referral does not specify “specified services” (which it did not here), it must specify services rendered that are (i) of a specified class;  or (ii) provided to a specified class of persons;  or (iii) provided within a specified location (s 87(1)).  As we have seen, the Referral specified the Kirrawee premises (i.e. (iii), above).  It follows that this requirement was complied with.

There was no suggestion that there was any breach of the statutory Guidelines mentioned in s 87(2).

It was not suggested that the Director should have exercised the summary power, conferred by s 91, to dismiss a referral.  Nor was there any challenge to the Director’s decision to set up a Committee.  It will be recalled that by virtue of s 93(a), the Director must so act “unless... satisfied that there are insufficient grounds” on which a Committee “could reasonably find” that the person under review has engaged in inappropriate practice in connection with the referred services, i.e. the services rendered at Kirrawee in the year commencing 1 January 1994.

In my view, it follows, for our purposes, that the Referral and the Director’s decision to set up the Committee should, in the absence of any contrary suggestion, and in accordance with the ordinary presumptions of regularity and validity, be treated as legally effective.

As has been seen, the learned primary Judge noted that the Referral “turned its attention to a relevant matter, namely, whether Dr Yung had given the appropriate level of clinical input...”.  I respectfully agree.  For this reason, the Referral was, in my view, valid.

However, his Honour went on to mention “an inherent defect” in the Referral, namely that “[t]he concern of the Commission that the appropriate level of clinical input could not be maintained on a regular and continuing basis for the long hours worked... could not readily be translated into an allegation of ‘inappropriate practice’”.  If by “inherent defect” his Honour meant that the Referral was invalid for this reason, then I could not agree.  No authority was cited for this proposition.  But, in contrast, his Honour’s statement should not, perhaps, be understood in that way.  In any event, the question is, with all respect, not one of law, but a factual issue:  if Dr Yung regularly saw an excessive number of patients working excessive hours, as a matter of ordinary logic, the conclusion would be open on the facts that there had been professional conduct which peer review may assess or judge to amount to “inappropriate practice” in the statutory sense.  The Referral was not, in my view, bad in law on this account.  His Honour’s reasons appear to proceed upon the footing that the legislative scheme may only operate upon an inquiry into specific, individual services.  With respect, I cannot accept this.  In my view, it is possible, subject to statutory safeguards, for there to be an inquiry into conduct in a more general fashion.  This question has been considered in other jurisdictions in analogous contexts, and reference is made below to these cases.  Moreover, the approach taken in other jurisdictions is consistent with one of the objects of the present legislation as explained in the Second Reading speech.  (See below.)

Although s 87 imposed a number of requirements in respect of the form and content of a referral and s 86(2) introduced a time limit, these provisions were, in my opinion, complied with.

I turn, then, to consider the Committee’s role in the matter upon the footing that the Referral should be treated as valid.

(b)       The Committee’s procedures and the Report

It will be convenient to deal with the issues which concern the process before going to the reasoning in the Report itself.

(i)         The procedures adopted by the Committee

The Committee gave Dr Yung notice of the hearing proposed to be held, as required by s 102(1).  The notice “must give particulars of the matter to which the hearing relates” (emphasis added).  What is “the matter” in this context?  In my opinion, it can only be the subject matter of the Referral.  The opening words of s 93, it will be recalled, are -

“The Director must... set up a Committee to consider whether the person under review has engaged in inappropriate practice unless...”

This review could only deal with the subject matter of the Referral.  In other words, the inquiry was not at large.  As has been said, s 87(1) required that the form and content of a referral be specific in certain respects. 

Did the present notice of hearing give particulars of the subject matter of the Referral?  In my opinion, it did.  It specified the relevant services as those rendered at the Kirrawee Medical Centre in the year commencing 1 January 1994.  They were particulars of the matter for the purposes of s 102(3), so that its provisions were complied with.

As has been seen, it is common ground between the parties that a person under review was entitled to the protection of the rules of natural justice.  In my opinion, it is both explicit and implicit in the Act, properly construed, that before the Committee the practitioner will be treated fairly in the natural justice sense:  the procedures laid down in the statute are clearly designed to achieve a fair treatment of the practitioner, consistently with the need to protect the public interest in the proper discharge of the practitioner’s professional responsibilities to patients.  Moreover, in assessing whether a person under review has been fairly treated, it will no doubt be borne in mind that in some cases, at least, the exact details of the facts to be examined will, to some extent, lie within the knowledge of the practitioner, and would not be known to the Commission, and not even be readily available, in detail, to the Commission or to the Committee.  In the present context, it could hardly be seriously supposed that fairness required that the detail of the treatment of each of some 17,000 patients be scrutinised.

The need to have regard to the practicalities in this area was one of the objects addressed in the amendments made to the Act in 1994.  In the Second Reading speech (Representatives, 30 September 1993 at 1556), it was said:

“A major factor in the inability to impose penalties commensurate with the extent of a practitioner’s overservicing is the current lack of power to make decisions on the extent of overservicing on the basis of generalised evidence.  At present judgments about overservicing can only be made on the basis of individual services, that is, recovery of benefits and the imposition of penalties can only be made in respect of each service separately determined to have been excessive.”

...

A significant change in the bill is the replacement of the concept of excessive servicing with one of inappropriate practice.  Whereas excessive servicing is currently defined as the rendering or initiation of services not reasonably necessary for the adequate care of the patient, the concept of inappropriate practice goes further.  It covers a practitioner engaging in conduct in connection with the rendering or initiating of services that is unacceptable to his or her professional colleagues generally.”  (Emphasis added).

In ensuring that the practitioner will be fairly treated by the Committee’s processes, the Act stipulates for the following:  (1) the practitioner is to receive a copy of the referral within 48 hours (s 88(1));  (2) the practitioner is then invited to make submissions for its dismissal (s 88(2));  (3) if the Director decides to set up a Committee, the practitioner must be notified within seven days (s 94(3));  (4) the practitioner has a right to challenge appointments to the Committee on grounds of either actual or apprehended bias (s 96(1));  (5) the Committee must hold its first meeting within fourteen days after appointment (s 97(1));  (6) the meetings of the Committee must be held in private (s 98(2));  (7) the practitioner must be given at least fourteen days’ notice of the Committee’s hearing (s 102(3));  and (8) at the hearing the practitioner is entitled to be accompanied by a lawyer, to question any witness, and to address the Committee (s 103(1) and (2)).

In his notice of appeal from the Tribunal’s decision, Dr Yung claimed that the Report was void, or was incapable of being affirmed by the Tribunal, by reason of the failure by the Committee to comply with the rules of natural justice.  The relevant particulars given were, inter alia, the Committee’s “refusal... to make available the full medical records for 29 November 1994”.

His Honour found that the Committee did not examine the records of 29 November 1994 in detail until after the hearing on 14 July 1995;  and that Dr Yung “did not have an opportunity to deal with any queries which the Committee had arising from those records”.  However, as has been seen, his Honour went on to note that he had not considered the whole of the proceedings before the Committee in detail.

On behalf of Dr Adams, any finding of lack of procedural fairness by the Committee in this regard is now challenged.  In order to consider the argument in its context, reference should be made to the following circumstances.

By letter dated 21 July 1995, the Committee provided Dr Yung’s solicitor with a number of documents including the records of some of the patients seen on 29 November 1994.

·      By facsimile letter to the Committee dated 25 July 1995, Dr Yung’s solicitor said that a summons had been issued to Dr Gooley to produce “the balance of the... records for patients seen by Dr Yung on 29 November 1994”, as the expert retained on behalf of Dr Yung required access to them.

·      The Committee replied to the facsimile on the same day, stating, inter alia:

“As previously advised, the hearing will resume at 9am on Thursday 27 July 1995.  After the formal resumption, the committee will receive the clinical records into evidence (from Dr Brett Gooley, for services rendered by Dr Yung on 29 November 1994) and will then adjourn the proceedings until approximately 10.30am.

On resumption, Dr Yung will be questioned on any issues that arise from these documents and on other matters relevant to the referral.  Dr Yung will be given every opportunity to address the committee on all relevant issues.

It is not considered that procedural fairness in these circumstances requires that the documents be made available to Dr Yung for the purposes of making them available to a potential expert witness prior to the resumed hearing.”

·      There was a short hearing on 27 July 1995, when the documents mentioned were taken into evidence.  At the conclusion of this hearing, the Committee permitted Dr Yung, if he wished, to put in a report from an expert dealing with these records.

·      As has been noted, the solicitors for Dr Yung made a written submission to the Committee dated 8 August 1995.  It was a nine page document which it is not practicable to summarise here.  Some of it has already been picked up in the sections of the Report mentioned above.  The submission did, however, attempt to deal with the points raised in the Referral, including the opinion of Dr Gordon.  However, the submission was expressed in general, argumentative terms.  It did not mention any of the records of patients seen on 29 November 1994.

In my opinion, none of the foregoing primary facts could be seriously disputed.  If (and the position is not clear) his Honour inferred that, in this connection, the Committee did not afford Dr Yung natural justice, then I would not, with respect, concur that such an inference should be drawn from the entire history of this aspect of the Committee’s process.  In my view, Dr Yung was treated procedurally fairly in this respect.  He was squarely informed that the Committee proposed to look at the records of 29 November 1994.  He was then given fourteen days to make a written submission on this, and other matters.  This process gave him a fair opportunity to persuade the Committee that his conduct in this regard was not “inappropriate practice”.

(ii)        The Report

By virtue of the relevant provisions of s 106L(1)(a), the Committee must give to the Determining Officer a written report setting out its findings on whether, in the Committee’s opinion, the practitioner’s conduct in connection with rendering the referred services was “unacceptable to the general body of the members of the specialty in which the practitioner was practising at the time”;  that is to say, had engaged in “inappropriate practice” as defined in s 82(1).

The Committee found that Dr Yung “[had] practised inappropriately in that his professional conduct... [was] such that it would not be acceptable to the general body of vocationally registered [GPs]”.

In my opinion, Dr Yung was properly treated as a specialist GP, having sought, and obtained, vocational registration in 1990;  and the Report otherwise complied with the formal requirements of s 106L(1)(a).

As a matter of substance, Davies J held, as we have seen, that there were two “major flaws” in the Report:  (1) it “made global findings either of or relevant to ‘inappropriate practice’ without relating those findings in any meaningful way to the referred services”;  and (2) it “did not state clearly” its findings of “inappropriate practice”.

His Honour did not, for the reasons mentioned above, order that the Report be quashed, or that its findings be set aside.  This is a curious aspect of these proceedings, both at first instance and on appeal.  Although the application for judicial review filed on behalf of Dr Yung sought, inter alia, orders quashing or setting aside the Report, counsel for Dr Yung elected at first instance not to press for this relief, notwithstanding Davies J’s invitation to amend for this purpose.  It is not necessary to decide here whether an amendment was required in any event, given the modern approach of widening the scope of permissible collateral administrative challenge both defensively and offensively (see Ousley v The Queen (1997) 71 ALJR 1548;  Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649 per Lehane J at 663-4;  Boddington v British Transport Police, House of Lords, 2 April 1998, unreported).  His Honour also had the power, which can be used in a proper case, to direct a party to amend a pleading so that the real issues are allowed to emerge (see The Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 91 FLR 37 per McLelland J at 38-9).  For instance, one possibility, if a denial of fair treatment of Dr Yung by the Committee had been made out, would be for the Court to grant declaratory relief of the kind ordered in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.  Significantly, before us, counsel for Dr Yung deliberately chose not to seek any relief in regard to the Report.

However, Dr Adams now challenges the primary Judge’s conclusions (1) and (2) above, notwithstanding that, in the absence of any order setting aside the findings in the Report, or the grant of declaratory relief in that respect, there was really no final determination of the point (cf. Leung v Minister for Immigration & Multicultural Affairs (1997) 150 ALR 76 per Finkelstein J at 90).

In my opinion, there is considerable force in Dr Adam’s challenge to this aspect of his Honour’s reasoning process.

The Act requires, as has been said, a consideration of the practitioner’s “conduct”.  True, the conduct must be in relation to services specified in the manner prescribed by s 87(1).  But s 87(1), s 86(2) and s 87(2), were complied with here.

It is also true that the process must otherwise treat the practitioner fairly.  Yet this was done here.  The Referral made it plain, in my view, that given the high volume of services regularly rendered by Dr Yung at Kirrawee, there was cause for concern that Dr Yung could not deliver a sufficient level of clinical input to his patients generally.

It appears that Dr Yung sought to dispel these concerns by advancing a number of general arguments.  For instance, in his solicitor’s final written submission dated 8 August 1995, it was argued that although Dr Yung worked long hours, “[this] is for the regulatory authorities to control... the Committee must not allow itself to become the instrument of the... Commission by effectively ruling that medical practitioners cannot work 16, 18 or 20 hours a day”.

In this kind of context, “global” findings of the type made by the Committee were, in my view, legally appropriate as a matter of approach.  Whether the findings were factually correct is not a question for this Court, either at first instance or now on this appeal.  Judicial review is only available here on a question of law.

Similar comments may be made about his Honour’s concern about the need for clarity in the Committee’s reasons.  When viewed in context, generally expressed findings were, I think, a sufficient and proper discharge of the Committee’s statutory duty to report.

Similarly, some of the specific observations of the Committee, e.g. Dr Yung’s failure to provide an after hours service, should also be viewed in the more general context of the Committee’s opinion that the extreme number of hours worked (7.00 am to 11.00 pm) must have impacted on aspects of Dr Yung’s practice.  Clearly, if Dr Yung was seeing patients up to 11.00 pm, he was then not in a position to provide an after hours home visit.

Although the Committee could have used the statutory sampling procedure (since repealed) if it wished, the Committee was not bound to do so.  Provided it acted fairly, the Committee was entitled by s 106(2) to act informally in its administrative inquiry.  Use of the sampling procedure was not mandatory.  At the same time, since the merits of the sampling procedure used went to the facts, it was equally open to the Tribunal, as a matter of law, to hold that, on the facts, the sampling process was flawed.  The merits are not, of course, an issue for judicial review.

In my opinion, the Committee addressed the correct legal question posed by s 106L(1)(a), and no other legal error in the Report has been demonstrated.  In particular, in my respectful opinion, the Committee was not bound to make findings in respect of individual patients in its Report.  Its duty was to report on Dr Yung’s conduct in relation to all of his Kirrawee patients over the year in question.  I will return to this aspect, which is the subject of some overseas authority, later.

On behalf of Dr Yung, it was submitted that there is a presumption, springing from the rules of natural justice, that Parliament would not intend that a practitioner be “drastically” penalised or disciplined “on the basis only of a general and unparticularised finding of fault described as ‘unacceptable conduct’ or ‘inappropriate practice’”.

Although questions of degree may be involved here, I cannot accept the submission in its absolute terms.  The language of the Act contradicts the existence of any such presumption in this context, at least in the breadth suggested;  and the Second Reading speech identifies this as a mischief addressed by the amendments then made to the Act.  At the same time, the Act does not leave the processes at large.  Section 87(1) requires some degree of specificity in the procedures;  and ss 86(2) and 87(2) provide other measures of protection for practitioners.

Counsel for Dr Yung argued that support for the presumption contended for might also be found in “a common law policy of precision in criminal and quasi-criminal proceedings”.  Reference was made to observations of Kirby J in Walsh v Tattersall (1996) 188 CLR 77 (at 105, 110) as to the policy at common law which has traditionally favoured precision in criminal pleading.  But, in my view, Walsh is distinguishable for present purposes.  Nor should its reasoning be seen as properly analogous in this different statutory context.  The questions in Walsh were whether a single statutory count of obtaining payments by dishonest means can allege obtaining of such payments over an extended period, and whether obtaining each payment constituted a separate offence.  It was held by Gaudron and Gummow JJ that the statute displayed an intention to create a discrete offence upon the receipt of any payment or benefit.  Kirby J held that the count was bad for duplicity.  Dawson and Toohey JJ dissented.

Kirby J (at 105-6) cited authority that the rule against duplicitous counts rested upon considerations of fairness.  His Honour went on to say (at 110) that the “rule of strictness” obliges prosecutors to “define with accuracy each criminal offence”.  Kirby J had earlier (at 110) noted that a finding of a breach of the “rule against duplicitous charges” does not require the charge to be dismissed.  In the case of patent duplicity, the complainant may be put to an election to remove the embarrassment;  if the defect is latent, further particulars may be directed.

In holding that the laying of a compendious charge, alleging a course of conduct, did not produce duplicity, Dawson and Toohey JJ said (at 84):

“The rule has been described as one of elementary fairness, to enable the defendant to know what it is of which he has been charged or found guilty and so that he has the opportunity of making a no case submission or a sensible plea in mitigation.  That duplicity is a matter of form, not a matter relating to the evidence called to support the count, is emphasised by the Court of Appeal in Greenfield.  For this reason S v The Queen is, in our view, not a case of duplicity.”

Noting (at 84(24)) that the need for the rule had been questioned by Professor Smith (1993 Criminal Law Review, p 141), their Honours cited R v General Medical Council;  Ex parte Gee [1986] 1 WLR 226 at 238-9.

In Gee, the General Medical Council had referred complaints of serious professional misconduct, in relation to four patients, to the Preliminary Proceedings Committee pursuant to the provisions of the Medical Act 1983 (UK) and the relevant subordinate legislation in the form of statutory Rules.  That Committee decided that, pursuant to the legislative scheme, the case should be referred to the Professional Conduct Committee for inquiry.  The practitioner received notice of a charge which alleged that he had abused his professional position by supplying to individual (unnamed) patients drugs in the circumstances specified in the charge.  The practitioner’s solicitors requested particulars and amendment of the charge.  The Council named eight patients, including four whose cases had not been before the Preliminary Committee, but refused to amend the charge.  On an application for judicial review by the practitioner, Mann J (at 238-9) held that the Rules provided a “protective filter” process to ensure that the Professional Conduct Committee could not, as a matter of jurisdiction, consider a case which had not been considered by the Preliminary Committee;  that as the Rules were not merely directory, the practitioner was entitled to have that process observed;  and that “the rule against duplicity” should apply to charges before the Professional Conduct Committee, and since the charge was not a single one of general irresponsible prescribing, but one which alleged the commission of separate offences of serious professional misconduct on a number of occasions, it was in its then form bad for duplicity.  Mann J accordingly ordered that particulars be provided and directed that the Council not proceed with the inquiry into the charge as then formulated and particularised.

In my opinion, Gee’s Case is also distinguishable from the present matter.  Mann J was of the view that the charge “allege[d] separate offences of misconduct, each being in regard to a different patient” (at 238).  He went on to say (at 239) that the “only answer to the argument [of duplicity] is that the charge is a single one of general irresponsible prescribing”.  In the present case, the subject matter of the Referral was the question whether the conduct, in rendering services at Kirrawee, in the year in question, to such a high number of patients, amounted to inappropriate practice.  This is a claim made at a general level, it is not made in respect of specific, individual patients.  It is true that the present statutory scheme requires some degree of specificity.  But this was complied with.  No issue of duplicity arose before the Committee and no attempt was ever made to challenge the validity of the Referral.

Gee was distinguished by the Privy Council in Peatfield v General Medical Council (1986) 1 WLR 243, another professional misconduct case, where a complaint of duplicity was rejected.  After discussing Gee (at 247) Lord Mackay said (at 248):

“...the charge [here] can be fairly read as alleging a course of conduct by the doctor in the conduct of his practice over the period stated in which patients were treated with the drugs specified in the three circumstances referred to under heads (a), (b) and (c) and that it was this course of conduct which amounted to serious professional misconduct.  They agree, and counsel for the General Medical Council accepted this, that the use of the word ‘individual’ was inappropriate but it is apparent from the record of the hearing that both parties before the committee treated the charge as a complaint with regard to a course of conduct and the doctor in his own evidence dealt with the matter very much from the point of view of what his ordinary practice and manner of operation were.  Indeed the doctor and his counsel laid stress on the number of patients dealt with in respect of whom there was no complaint.”  (Emphasis added).

Peatfield has been followed by the New Zealand Court of Appeal in Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 537, where Cooke P, Richardson, McMullin and Somers JJ said (at 546):

“In the present case the document, as elucidated by counsel for the Preliminary Proceedings Committee, is meant to charge a number of separate instances of disgraceful conduct in a professional respect;  and also that considered cumulatively any number or all the alleged instances of conduct amounted to disgraceful conduct in a professional respect.  We do not understand Peatfield to exclude such a procedure under the English legislation.  Even Gee, rightly understood, may not do so.  In any event we do not think that the New Zealand legislation excludes it, provided of course that the practitioner is properly informed of precisely what he is charged with.  That is crucial.  By s 56(11) the Council are required to observe the rules of natural justice at the hearing, and the same elementary duty surely falls implicitly on the Preliminary Proceedings Committee at their stage of the matter also.  But again, once the meaning of the document is made clear, the mere presentation of charges in that form does not seem to us to violate natural justice.”

Casey J said (at 549):

“English cases of which Peatfield... is the latest example, clearly demonstrate the acceptability in inquiries of this nature of aggregating a number of separate but similar instances of alleged misconduct as particulars of a course of conduct, to support a single charge of infamous conduct.  Framed in this way, the charge can be seen to be dealing with a single subject-matter, eg systematically prescribing drugs to addicts, or dishonestly overcharging or carelessness in prescribing and supervision of treatment.  Under the New Zealand Act I can see no difficulty in regarding charges framed in that way as appropriate to the subject-matter of the various complaints.

However, I do not think that s 56(3) should be read as authorising or contemplating the framing of a single charge in relation to more than one subject-matter or complaint.”

In my opinion, the approach taken in Peatfield and in Duncan is equally open in the present legislative context.  At the same time, as was also held in Gee, the practitioner is entitled to have the authorities observe the statutory processes, and in particular their “protective filters”.

(c)       The Tribunal’s Decision

(i)         The legal scope of the review

Although Davies J held otherwise, I am of the opinion that, properly construed, a Tribunal’s powers are limited to a consideration of a determination.  

The scheme and language of the Act both indicate that there is no authority given to the Tribunal to reconsider and set aside the Committee’s findings with respect to “inappropriate conduct”.

The starting point is s 114(1), whereby the person to whom a determination relates may request the Minister to “refer the determination to a Tribunal for review” (emphasis added).  It is thus clear that the subject matter of the Tribunal’s review is the determination.  This is confirmed by s 114(2).

It is true that the documents required by s 115(1) to be forwarded to the Committee include the transcript of the proceedings at the hearing before the Committee.  But for present purposes this is equivocal.  The transcript could be relevant even if the determination only were reviewed.  Any of the circumstances revealed in the proceedings before the Committee might be relevant to the issues arising in the making of a determination.

The question is, I think, put beyond doubt by the language of s 119(1) and (3).  No mention is there made of the peer review body, the Committee, its report or its findings.  Instead, s119(1) speaks of a “Tribunal that reviews a determination...”;  s 119(1)(b)(ii) provides that the Tribunal shall affirm or set aside the determination or make another determination;  and, by s 119(3), the Tribunal’s decision on review is to be taken to be a determination of the Determining Officer.

On behalf of Dr Yung, reliance is placed upon the language of s 119(a) ‑ “- a Tribunal... shall consider the matter...”.  (Emphasis added).

It is true that the word “matter” is, as Kitto, Menzies and Windeyer JJ observed in The Queen v Thomas;  Ex parte Brodsky (1963) 109 CLR 434 (at 438), capable of a wide meaning.  Their Honours there said of its use in that statutory context that “it seems chosen for the sake of that vagueness which reserves all definition to be the function of super-added descriptive words”.  But, in my view, there are super-added descriptive words here which do define the subject of the review.  Section 119(1) opens with the words “A Tribunal that reviews a determination...”;  and s 119(1)(a) directs the Tribunal to “consider the matter to which the determination relates...”.  This means that whilst the Tribunal may not be confined to the formal terms of the determination, and hence may consider its substantial aspects, being a matter “to which the determination relates...”.  But it does not at all follow that s 119(1)(a) empowers the Tribunal to vary or set aside the Committee’s findings.  The Tribunal must consider them and take them into account without embarking upon a review of them.  The actual weight to be given to the Committee’s findings by the Tribunal in its review of the determination is a question for the judgment of the Tribunal.

It follows, in my view, that insofar as the Tribunal appears to have regarded itself as at liberty to depart from the Committee’s findings, it erred in law.

(ii)        Did the Tribunal have power to receive fresh evidence?

I agree with Davies J, for the reasons he gave, that the Act, and the settled course of authority in this area (see Determining Officer v Lusink, Sundberg J, 12 February 1998, unreported, and the cases there cited) make it clear that the Tribunal had no such power or authority.

(iii)       Did the Tribunal err in law by failing to give adequate reasons?

I agree with Davies J, for his reasons, that there is implicit in the language of this statute an obligation to state its reasons for reviewing a determination.  I am further of the view that the Tribunal did not adequately explain the basis for Dr Yung’s disqualification for six months, as distinct from another period;  or whether a reprimand or counselling were appropriate penalties.

ORDERS ON THE APPEAL

It follows that, although I have departed from important parts of his Honour’s process of reasoning, I would also set aside the Tribunal’s decision and remit the matter for reconsideration according to law.  Given my approach, the Committee’s findings should be allowed to stand, so that there still remains a useful statutory function for a Tribunal, differently constituted, to perform.

I would, accordingly, dismiss the appeal, with costs.

For completeness, I should say that were I of the view that the Committee had erred in law, then it would have been necessary for me to consider whether it was still proper the matter should be remitted to the Tribunal.  But as I am not persuaded that the Report suffers from any legal deficiency, the ordinary statutory course should, I think, be followed, and a Tribunal should reconsider the review of the Determination.

Associate:

Dated:              15 May 1998

BURCHETT AND HILL JJ:

REASONS FOR JUDGMENT

THE FACTUAL BACKGROUND

Dr Yung is a medical practitioner certified for general practice by the Royal Australian College of General Practitioners.  In the period between 1 January 1994 and 31 December 1994 (the “referral period”) he practised three days a week from premises at Kirrawee (a medical clinic);  on average he performed 106 services per day at that location.  In the same year he also carried on practice at a number of other locations on other days.  This level of service (in a year from the Kirrawee location he rendered 17,331 services) came to the attention of the Health Insurance Commission, a body established under the Health Insurance Commission Act 1973.  His patients were entitled to Medicare benefits by virtue of the provisions of Part II of the Health Insurance Act 1973 (“the Act”). 

The extent of his servicing in the previous year came to the attention of the Commission by the application of computer technology which enabled the Commission to identify practitioners whose practice profiles differed greatly from other practitioners practising in the same area.  He was counselled but the pattern of his servicing in the year to December 1994 reflected no change.

Ultimately the Commission on 8 May 1995 issued a referral to the Director of Professional Services Review appointed under s 83 of the Act to consider his conduct and whether he had engaged in inappropriate practice in connection with the rendering of services in a 12 month period.  The referral was restricted to his services at Kirrawee in the referral period.  The instrument of referral noted the concern of the Commissioner that the doctor would not be able to provide an appropriate level of clinical input when consistently rendering the number of services or when working excessively long hours at Kirrawee.  The document is a long document and it is unnecessary to quote extensively from it.  It alleged, inter alia:

“In the referral period, 1 January 1994 to 31 December 1994, Dr Yung provided 19,622 services under Medicare of which 17,331 (88.3%) were provided at his Kirrawee practice, mostly on Mondays, Tuesday and Thursdays. ...  This corresponds to an average of over 100 services on each of these days.  On Wednesdays, Fridays, Saturdays and Sundays services were mostly provided at locations other than Kirrawee.  In contrast to his Kirrawee location, the number of services provided averaged between 8 and 13 per day”.

The Commission noted, in forming its view about the inappropriateness of his practice, that:

“Dr Yung provides more services than 99% of all general practitioners in Australia.

It also noted the findings of the Interpractice Comparison Survey conducted by the Royal Australian College of General Practitioners, noting that the:

“servicing rate equates to approximately 13.7 minutes per consultation.”

It also noted that The Entry Standards for General Practice Accreditation developed and adopted by the Royal Australian College of General Practitioners states:

“Consultation times are long enough to allow quality care.  This means that average times are not less than 10 minutes.

Using this guideline, to provide 100 services a day, Dr Yung should have worked continuously for at least 16.7 hours.”

It seems that Dr Yung, on his own evidence (if accepted), did work some 16 hours a day on the three days a week at Kirrawee.  The referral in its formal part concluded, after referring to a written opinion by a consultant:

“Given these reasons, the Health Insurance Commission is concerned that the appropriate level of clinical input could not be maintained for such long hours on a regular and continuing basis and believes that this conduct is unacceptable to the general body of General Practitioners.”

As has already been noted, the services at Kirrawee were performed at a medical clinic.  The referral was duly notified to the doctor.  The Director determined to set up a committee to consider whether the doctor had engaged in inappropriate practice in accordance with s 89 of the Act.

A duly constituted Committee met, as required, in private.  It held a hearing of which notice was given to the doctor.  Although not, under the Act, entitled to legal representation, Dr Yung was accompanied by a solicitor as permitted under s 103(1).  The Committee did not restrict itself to consider the matter directly raised in the referral.  In addition, it raised other issues including both what it saw as a lack on his part to make home visits and a lack of rendering after hours services. 

The hearing took place on 14 July 1995 and for a short time on 27 July 1995.  The Committee examined Dr Yung and a Dr Gooley, the senior partner in, and ultimate owner of, the practice in Kirrawee which, by the time of the hearing, Dr Yung had left.  Dr Yung expressed the view that he was satisfied with the quality of care he had provided.  Dr Gooley expressed the view that Dr Yung was:

“an exceptionally competent caring medical practitioner whose patients would come and insist on seeing him and no one else.”

On 30 August 1995 the Committee issued a report.  The following extract from that report appears in the judgment appealed against:

“Dr Yung entered private medical practice at Kirrawee in 1984 following 2 years hospital experience after graduation from the University of Sydney in 1982.  In the Committee’s view, the practice environment at Kirrawee was one of poor quality, the emphasis in the practice being one where financial motivation took a higher profile than the concept of professionalism.  The Committee found little evidence of in-house quality assurance.  He practised episodic rather than continuing care.  He has little demonstrated evidence of preventive care.  His medical records are of very poor quality.  He had only 93 level A consultations despite an extraordinary high total of 15502 consultations at Kirrawee during the referral period.  His level of competence is questioned.  He provides a miniscule level of home visiting compared with his peers and therefore does not show a commitment to the immobile.  Other concerns have been expressed in the accompanying documentation.

Dr Yung entered this practice without previous general practice experience.  He readily accepted the Kirrawee practice arrangements and was content to continue in a less than adequate practice for more than 10 years.  His servicing rate is beyond the 99th percentile of practitioner services in the Australian environment.  He was counselled by a Medical Adviser from the Health Insurance Commission and made no effort to change his patient numbers per day.  His lack of response to counselling, knowing what the consequences of such lack of response might be, demonstrates either arrogance or stupidity and is incomprehensible to the Committee.

The view of the Committee is that Dr Yung is grossly at variance with both adjacent area practitioners (as shown by the HIC statistics), the general body of practitioners, with world opinion, with what the Committee itself considers to be reasonable and what it believes to be the opinion of Dr Yung’s peers in good standing.

The Committee was asked to consider whether or not Dr Yung has practised inappropriately.  The Committee finds that Dr Yung has practised inappropriately in that his professional conduct as presented in the referral and as elicited during the course of the hearing is such that it would not be acceptable to the general body of vocationally registered general practitioners.”

The Committee made a number of findings.  It expressed itself as being unable to accept that a practitioner could give proper professional attention to patients when rendering such a high number of services and when regularly working such excessively long hours.  It noted a failure to provide an adequate summary in 92 out of 111 records examined and considered from a sample of 91 records taken on one day (29 November 1994) that 75 consultations warranted being billed as level B consultations (MBS item 23) but suggested that the remaining 16 consultations should have been billed at a lower rate, being a less complicated consultation, as level A (MBS item 3).  It referred additionally to an assertion that the doctor had prescribed antibiotics on that day in 17 cases and, in 10 of them, antibiotics were not indicated and expressed the view that he should not be classified as a vocationally registered general practitioner.  Not only were many of the matters it referred to not dealt with in the referral but also the Committee made no attempt to formulate in writing a case on these matters for Dr Yung to answer.  No finding was made of inappropriate practice in relation to any identified patient or patients;  nor was there ever a suggestion that a patient had ever complained of his treatment.  No attempt was made, as the law then permitted, for statistical sampling of these services to be made on which findings could be based.

Because the Committee’s report  expressed the view that, in its opinion, his conduct in connection with the rendering of services was unacceptable to the general body of the members of the area of general practice in which he was practising, the matter was considered by a determining officer appointed under s 106Q of the Act who, in accordance with s 106S, made a draft determination and gave a copy of that draft to Dr Yung inviting him to make written submissions.  A final determination then issued on 18 October 1995. 

The determining officer, Dr Adams, the respondent to the present proceedings, in the final determination dated 18 October 1995 directed the doctor to be counselled, that he pay to the Commonwealth an amount of $42,130.60 said to be the amount equivalent to Medicare benefits paid for the inappropriate services and that, in accordance with s 160U(g)(i) of the Act, he be disqualified 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 9 months and, in accordance with paragraph 160U(h) of the Act, he be fully disqualified for a period of 6 months.  Dr Adams commented in effect that, in accordance with legal advice he had been given, based upon the Committee’s report, there being no provision made in the Act, he was unable to consider other material outside the referral period.  Arguments put by Dr Yung challenging findings and the validity of the Committee’s conclusions were not taken into account. 

In giving reasons for his decision, Dr Adams said, inter alia:

“2.       I noted that Dr Yung had been counselled regarding his rendering of services by the Health Insurance Commission prior to the referral of his conduct and that ‘his lack of response to counselling, knowing what the consequences of such lack of response might be’ (ie. the referral of his conduct) was incomprehensible to the Committee.

4.         I noted that the Committee had cause to question Dr Yung’s truthfulness during its hearings into his conduct and that it had concerns about the standard of Dr Yung’s clinical records and his prescribing habits.”

Dr Yung’s solicitors then requested a review of this final determination in accordance with s 114(1) of the Act. 

Such a review was held by a Professional Services Review Tribunal constituted in accordance with s 108 of the Act.  At this stage the doctor was entitled to be represented and he, or his representative, given an opportunity to address the Tribunal.  The members of the Tribunal (the review was the first conducted under a new legislative scheme) were the Honourable Mrs Lusink, a former Justice of the Family Court of Australia, Professor Priscilla Kinkaid-Smith and Dr Peter Joseph.  The latter two were both medical practitioners.  The review was limited to the material forwarded by the Minister and addresses made by Counsel.  The Tribunal reached what the President referred to as its own view, the conclusion that the decision of the Committee was correct, although she went on to say that she did not necessarily agree with all aspects of the Committee’s proceedings or its report on its findings.  The Tribunal set aside the determination save for the direction as to total disqualification. 

Professor Kinkaid-Smith, in additional comments, accepted the Committee’s finding of inappropriate practice based, as she said, largely on the fact that Dr Yung in the relevant period was above the 99^th percentile of that recorded by other general practitioners.  She referred also to a large number of x-rays carried out which she suggested may have arisen because of a profit incentive or because the time he took was too short to determine the need for an x-ray.  She also expressed the view that the Committee had dealt with a large number of issues irrelevant to its key issue.  She signalled various problem areas including inappropriate services, lack of continuity of care, lack of home visits, the failure to take into account the type of patients seen in medical clinics, after hours care, the use of a non random sample of records, the use of draft standards for General Practice Accreditation having no status, over prescribing of antibiotics, quality assurance and a view expressed implicitly, at least, by the Committee, that 16 hours of work a day for Dr Yung was of itself inappropriate practice.  These views were endorsed by Dr Joseph who made, in addition, some general comments of his own as to the legislative scheme.

From this decision of the Tribunal, the doctor appealed to this Court under s 124A of the Act.  Such an appeal is on a question of law only.

THE JUDGMENT APPEALED FROM

The appeal was heard by Davies J and was allowed by his Honour.  He ordered the decision of the Tribunal to be set aside and the proceedings to be remitted to another tribunal, differently constituted.  His Honour’s reasons for so doing may be briefly summarised:

1.         There were three major flaws in the Committee’s proceedings and report.  The first was a failure to accord to the doctor procedural fairness, both in failing to give him reasonable notice of the matters it was to consider and also a reasonable opportunity to respond to findings adverse to him which it proposed to make.

2.         The second flaw was that the Committee made global findings, either of or relevant to inappropriate practice, without relating these findings in any meaningful way to the referred service.  In particular, it made no attempt to deal with statistical samples.

3.         The Committee did not state clearly the findings of inappropriate practice which it made.

4.         The determining officer also misapprehended his powers.  In deciding that he was limited to events occurring during the referral period, he erred.  He was thus entitled to take into account matters such as whether Dr Yung had subsequently changed his ways and reformed the nature of his practice.

5.         Because the determining officer gave effect to the findings of the Committee and those findings were procedurally flawed that affected the determination.

6.         The Honourable Mrs Lusink and the other members of the Tribunal, both of whom agreed with her, had failed to give adequate reasons for concluding that the decision of the Committee that the doctor had practised inappropriately was correct.  Although reasons were given by Professor Kinkaid-Smith and Dr Joseph, the Professor had come to adverse conclusions about radiology and thus denied the doctor natural justice for no allegation had ever been formulated against him with respect to radiology and so he did not have the opportunity to answer.  There was, his Honour said, an obligation upon the Tribunal to give a written decision setting out its findings with reasons.  The failure to do so alone made it necessary, in his Honour’s view, that the matter be remitted to a tribunal differently constituted.  It raised an inference that errors of law had occurred.

7.         The Tribunal also erred in failing to make a clear identification of inappropriate practice or practices related to an identified service or services.

8.         Finally, the Tribunal’s reasons had to be set aside because of the flaws that had occurred at earlier stages, particularly procedural fairness in the Committee.

His Honour noted that counsel for the doctor had rejected a suggestion that the Committee’s decision and the determination should have been challenged.  Thus those decisions still stood.  Any challenge would have had to be brought under the Administrative Decisions (Judicial Review) Act 1977 or s 39B of the Judiciary Act 1903 (Cth).  Accordingly, his Honour dealt with the matter purely as an appeal under s 124A and set aside the Tribunal’s decision.

From this decision the determining officer appealed to this Court.  A notice of contention was lodged also by the doctor.

THE QUESTIONS OF LAW IN THE APPEAL

On the appeal the Court was greatly assisted by lengthy submissions from counsel.  In the course of the submissions by counsel for the determining officer, the Court requested that the issues of law contained within those submissions be formulated more precisely.  This did not happen despite repeated requests that it be done.  Doing the best we can from the way the matter was argued, the questions may be stated as follows:

1.         That the Tribunal had afforded the doctor natural justice and was not restricted to considering the subject matter of the referral but could consider any matter affecting conduct in the referral period without the need to give particulars or prior notice to the doctor.

2.         That the Tribunal was not bound to investigate specific services;  its task was to consider conduct.  Thus the Committee could look at the matter in a generalised way without considering either the whole of the services in the referral period or a statistically acceptable sample.

3.         That in considering the question of inappropriate practice, it was necessary to take into account the fact that the doctor was certified for general practice by the Royal Australian College of General Practitioners and to apply standards which that College had published.  The learned judge below had criticised the Committee for so doing.

4.         That the Tribunal’s powers (and by implication the legal issues arising before this Court on appeal) were limited to a consideration of matters of penalty and it was not open to the Tribunal to consider what happened before the Committee, if errors of law committed by the Committee were found. The Tribunal, in other words, was bound by the decision of the Committee regardless of any error that may have occurred in its procedure or reasoning.

THE STATUTORY BACKGROUND

The steps which were taken in what the learned judge below referred to, not inappropriately, despite submissions to the contrary by counsel for the determining officer, as “disciplinary proceedings” commence with s 86 of the Act.  That section provides relevantly:

“(1)     The Commission may, in writing, refer to the Director the conduct of a person relating to ...

(a)       whether the person has engaged in inappropriate practice in connection with rendering of services.

(2)       So far as the referred services concern rendering of services, the services must have been rendered:

            (a)        during the 2 year period preceding the referral.”

No specific powers are given to the Commission to engage in inquiries although clearly the Commission must form some view on material it will have collected before making a referral.  The expression “inappropriate practice” is defined in s 82, relevantly, as follows:

“(1)     A practitioner engages in inappropriate practice if the practitioner’s conduct in connection with rendering or initiating services is such that a Committee 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[sic] in which the practitioner was practising when he or she rendered or initiated the services.”

“Practitioner” is defined, inter alia, in s 81(1) as meaning a medical practitioner. 

Section 81(2) provides:

“For the purposes of this Part:

(a)       general medical practice is taken to be a specialty; and

(b)       medical practitioners practising in general practice are taken to be specialists in that specialty.”

On its face therefore the general body of members of the specialty of general medical practice include all general practitioners, not merely those who have been certified by the Royal Australian College of General Practitioners.

Section 87(1) regulates the content of a referral.  It must relate to specified services being:

“(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 or persons;

            (iii)       services provided within a specified location.”

These are the “referred services” defined in s 81(1).

Among the steps open to the Director receiving a referral (another includes dismissing the referral altogether) is the setting up of a committee to consider whether the practitioner has engaged in inappropriate practice: s 89(1)(b).  A committee may then be set up by the Director by instrument in writing: s 93.  There is a time limit of 28 days from receipt of the referral in the setting up of a committee: s 89(1)(b), although the Director’s decision on the referral is not invalidated if it occurs after the expiration of the 28 days.  Notice of the Director’s decision is required to be given to the person the subject of the referral: s 94(1) and the constitution of committees is regulated by s 95 of the Act.  Notice of a hearing is to be given to the person under review, giving “particulars of the matter to which the hearing relates”: s 102.  Evidence may be taken and/or documents produced to the Committee: s 101(1), and the person under review is entitled to question any person giving evidence and address the Committee.  As already noted, lawyers are not allowed to address the Committee directly but may attend and advise the person being reviewed.

The Committee is authorised by s 106H, in making findings in connection with referred services, to base its findings wholly or in part on the person’s conduct in connection with a sample of services.  The procedure dealing with sampling is regulated by ss 106J and 106K.  There is no suggestion that such a procedure was adopted in the present case.

The Committee is obliged (by s 106L(1)) to prepare a written report setting out its findings (relevantly) on whether:

“(a)     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 in which the practitioner was practising at that time.”

It may include recommendations for disqualification and the nature and period of the disqualification: s 106L(3).  The report is to be given within 90 days after the Committee was set up although there is a power to extend that period on application before the period expires.  Where fraud is to be found, the Committee is obliged to suspend its consideration.  The present case is not suggested to have involved fraud.

The report when received by the determining officer is to be given to the person under review:  s 106R.  The determining officer, where the report contains a finding that the person has engaged in inappropriate practices in connection with “rendering or initiating” some or all of the referred services, is obliged to make a draft determination in accordance with s 106U and to give copies of that determination to the person under review: s 106S.  An opportunity is then given to the person under review to make written submissions suggesting changes to the draft determination.

Section 106T then requires the determining officer to make a final determination which may contain one or more of various directions in s 106Q.  The determining officer is, it would seem, limited to making one or more of these directions and has no power to set aside the Committee’s finding of inappropriate practice.  Those directions extend from mere reprimand to the disqualification, either in respect of specified services, s 106U(1)(g), or full disqualification: s 106U(1)(h).  A direction under paragraph (1)(g) must specify a period of disqualification of up to 12 months to start when the determination takes effect; that under paragraph (1)(h) a period of six months. 

A person to whom the final determination relates is entitled to request the Minister to refer the determination to a Professional Services Review Tribunal for review under s 114(1).  Section 115 provides that, in the event of request, the Minister is to forward the request to the President of the 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.”

The rights of a person requesting a review are set out in s 117.  He or she may appear in person or may be represented and is to be given an opportunity to address the Tribunal.  The parties are to be that person and the determining officer.  Section 119(1) then provides:

“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.”

The decision of the Tribunal is to be taken to be a determination of the determining officer.

As already noted, the right to appeal on a question of law only is then provided in s 124A.

As reference has already been made to level A and level B items (ie item 3 and 23), it may be noted that these are contained in the Health Insurance (1993-1994 General Medical Services Table) Regulations and Health Insurance (1994-1995 General Medical Services Table) Regulations.  At all relevant times, these were in the following terms excluding monetary amounts:

“3.       Professional attendance at consulting rooms (not being a service to which any other item applies) by a general practitioner for an obvious problem characterised by the straightforward nature of the task that requires a short patient history and, if required, limited examination and management - each attendance $...

23.       Professional attendance at consulting rooms (not being a service to which any other item applies) by a general practitioner involving taking a selective history, examination of the patient with implementation of a management plan in relation to 1 or more problems, or a professional attendance of less than 20 minutes duration involving components of a service to which item 36 or 44 applies - each attendance $...”

Although neither description refers to a minimum time period to be spent with a patient, a level B attendance, which is a higher level of benefit, presumably requires performance of more detailed activities than a level A (item 3) service.

THE COMMITTEE’S TASK AND ITS RELATION TO THE REFERRAL AND NATURAL JUSTICE – ISSUE ONE

It was not disputed by counsel for the determining officer that there was a requirement on the part of a committee to afford a doctor natural justice.  The submission was rather that, in all the circumstances, natural justice had indeed been afforded.  The determining officer also submitted that the Committee could range outside matters in the referral, for its role was investigatory. 

It was said that the doctor had been questioned repeatedly about the various matters on which the Tribunal ultimately made either comments or findings.  Particularly it was pointed out that there had been raised with the doctor during the hearing matters involving poor quality records, paucity of home visiting, lack of after hours service and prescribing of antibiotics.  Other conclusions or comments of the Committee were said to involve merely musings on the part of the Committee rather than findings. 

It is not necessary in the present case to expound upon the requirements of investigative committees or tribunals to afford natural justice.  Whether natural justice should be afforded and the contents of the rules of procedural fairness to be adopted are matters that depend upon the legislative scheme and the subject matter of the inquiry: Kioa v West (1985) 159 CLR 550 at 584 per Mason J and at 612 and 615 per Brennan J.  We agree with the learned primary judge 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.  Assuming that the Committee was able to embark upon an inquiry unlimited by the terms of a referral then we would have no difficulty in accepting the view which His Honour took.  The rules of natural justice would require the Committee to make clear to the doctor the allegations made against him.  Where the matters to be considered by the Tribunal involve a multitude of services, in the present case some 17,000, it is obvious that the Committee’s proceedings must necessarily be made manageable: Freeman v McKenzie (1988) 82 ALR 461 at 471-2;  Romeo v Asher (1991) 29 FCR 343 at 352: per Morling and Neaves JJ, Burchett J dissenting.  We shall return to the question of sampling later. 

In the latter case, the majority said at 349, speaking of an earlier legislative scheme, although in comments which would still have application:

“The requirements of procedural fairness will, however, often extend beyond the specific requirements of the statute.  What it is necessary for a Committee to do in order to satisfy those requirements in any individual case will, of course, depend upon the particular circumstances of that case.”

Burchett J who dissented, but only on the facts of the case rather than on a matter of principle, said at 357:

“In the absence of some identification of the Committee’s concerns (which may conveniently be called particulars, provided it is understood that they would not be particulars of a charge but of a finding the Committee considers may be open on the material before it), the appellants must be groping in the dark in any attempt they make to provide an answer.  Except in a sense so broad as to be meaningless, they do not know the question.”

However a referral is not merely the instrument which initiates the series of administrative inquiries which in the present case were undertaken.  It also provides the framework in which those inquiries are to be held.  While it is true that the legislation confers upon the Health Insurance Commission no enforceable investigatory powers, the legislation does not contemplate that the Health Insurance Commission will make a reference under s 86 without making some inquiry.  It did so in the present case, both in the process of counselling it adopted and in the information technology application which identified what was thought by the Commission to involve too high a level of consultation.

The referral while expressed to be of conduct is not conduct in isolation.  It is conduct relating to the issue whether the person has engaged in inappropriate practice in connection with rendering of services.  Section 80(1) makes clear the legislative scheme is to examine whether inappropriate practice as defined in s 82 is involved.  That inappropriate practice is conduct in connection with specified services.  They are called “the referred services” – see ss 91, 93 and the definition in s 81(1).  While those services may include all or some services within the referral period, the reference is not intended to open for consideration by a committee ultimately convened any aspect at all of the referred person’s conduct in the referral period.  What is contemplated is that it be an inquiry into specified conduct as dealt with in the reference rather than conduct at large.

This conclusion is reinforced by the legislative requirement that the practitioner conduct the hearing without real assistance from a legal adviser.  Whilst it is true that a legal practitioner may advise the practitioner, given the fact that the legislature has seen fit to exclude a legal practitioner from either examining witnesses or making submissions, it must follow that the intended subject matter of the procedure before a committee be manifest to the practitioner prior to the time the Committee meets to consider it.

The conclusion follows also from the fact that the director receiving the referral must make various decisions on the referral from its contents.  A director could hardly dismiss a referral if the possibility was that a committee could roam outside its terms.  In making a decision to dismiss the referral the director has to form a view that there are insufficient grounds on which a committee could reasonably find that the person under review had engaged in inappropriate practice in connection with the referred services (see s 91).  On the basis of the referral indeed the director may himself disqualify the practitioner although not for reasons presently relevant.

The function of the Committee therefore and the hearing it is required to undertake on the evidence given and documents produced, is limited to considering the matters that are the subject of the referral: s 101(2).  The Committee’s report is confined to the referred services and the practitioner’s conduct in connection with them: s 106L(1)(a).  Although the Committee may (it did not in the present case), on evidence before it, refer matters to the licensing authorities in a State or Territory, that does not mean that it can go outside the reference which it is required to consider.

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 sampling procedure in s 106H (which has now been repealed by the Health Insurance Amendment Act (No. 1) 1997) 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.

As Hill J said in Artinian v Commonwealth (1996) 43 ALD 235 at 242, dealing with another practitioner of whom it was alleged he had not spent sufficient time with patients to give them proper care based upon a statistical analysis:

“These and other figures might well lead to the conclusion either that Dr Artinian would be so exhausted from seeing a large number of patients as not to give his patients appropriate medical attention or alternatively was misstating the number of patients he had personally seen or the time ...which he spent with them.”  (emphasis added)

The fact that the doctor in the present case is in the 99th percentile of doctors in comparable positions clearly enough raised a question for consideration, for that statistical outcome involves comparing the time that he spent (under 10 minutes per patient) with the time spent on average by other practitioners.  But it does not follow from the fact that an adverse conclusion might well be drawn that it necessarily must be.  It will be the task of the Committee to examine the practitioner’s conduct in respect of those services and to determine the issue.  Sampling will be the obvious mode of proceeding.  No question of burden of proof arises in the context.

In the present case, the Committee did not attempt to make any useful sample analysis.  Indeed it appears to have considered only the patients seen on one day in the whole 12 month period although it asked the doctor questions about patients treated in two months.  It does not appear to have considered the medical records that were made available to it in other periods.  Indeed the Committee did not even examine every service performed on that one day let alone whether there was an over prescription of antibiotics in some stated proportion of cases having regard to the facts of these cases, assuming that was a matter open to it.

In our view the proceedings before the Committee miscarried not so much because it failed to particularise various matters against the doctor in respect of conclusions which it reached or that it failed to indicate adverse conclusions which might be reached, although both these matters occurred.  Rather it failed to confine itself to the very reference which was before it.  It also failed to consider the issue in that reference which related to conduct in respect of the referred services by only considering the one day which it did.

WHETHER THE COMMITTEE MUST CONSIDER SPECIFIC SERVICES –

ISSUE TWO

It was submitted on behalf of the determining officer that the legislative scheme as it was amended in 1994 and applicable on the present facts had replaced an earlier scheme to ensure a committee could make its decision involving cases of over servicing on the basis of generalised evidence. 

We were referred to the Second Reading Speech of the then Parliamentary Secretary to the Minister for Housing, Local Government and Community Services and Parliamentary Secretary to the Minister for Health in which the Honourable Parliamentary Secretary said:

“A major factor in the inability to impose penalties commensurate with the extent of practitioner’s overservicing is the current lack of power to make decisions on the extent of overservicing on the basis of generalised evidence.  At present judgments about overservicing can only be made on the basis of individual services, that is, recovery of benefits and the imposition of penalties can only be made in respect of each service separately determined to have been excessive.”

It is true that the sampling procedure introduced in the 1993 Bill to which the Second Reading Speech was addressed, permits necessary extrapolation from a sample to the referred services.  It does not follow from that that a committee is not required to reach an ultimate conclusion about specified services.  Its task is to consider the matter in the referral which is the conduct in respect of specified services.  Although no doubt inferences can be made from a sample to a totality of services, that does not take away from the requirement of the ultimate conclusion to relate the issue of conduct either to some or all of those services.  That is not a matter to which the Committee addressed itself.  Nothing in the explanatory memorandum which accompanied the Health Legislation (Professional Services Review) Amendment Bill 1993 suggests the contrary.

THE RELEVANCE OF CERTIFICATION BY THE ROYAL AUSTRALIAN COLLEGE OF GENERAL PRACTITIONERS – ISSUE THREE

The relevance of the doctor’s certification by the Royal Australian College of General Practitioners was a matter commented on by His Honour and raised in submissions to us.

The ability to charge the scheduled fees in items 3 and 23 is given to a person who is, within the meaning of the regulations, a general practitioner.  One qualification for a general practitioner, as defined, is fellowship of the College, participation in continuing medical education at the College and meeting the College’s requirements for quality assurance.  It is not the only qualification.  The holding of that qualification, which was not in dispute at any stage, is a matter of fact. 

It does not follow from that, that one can extrapolate from a definition by the College of general practice which includes, although it is not limited to, “comprehensive whole care to individuals families and their community”, that the furnishing of care not being as comprehensive will involve conduct unacceptable to the general body of general practitioners.  The test to be applied in the legislation is a test related to the body of general practitioners generally. It is a not a test to be formulated by reference to particular standards of the College although those standards may no doubt be accepted by the general body of general practitioners.

In our view His Honour did not err in treating the certification as an irrelevant matter to the questions of law before him.

THE TASK OF THE TRIBUNAL – ISSUE FOUR

It was submitted before us that the Tribunal was not empowered when the matter came before it to consider any matter which was determined by the Committee.  Rather it was said, because the Tribunal was confined to specified material, that it was bound to accept the Committee’s findings and therefore review only matters of a disciplinary penal nature.  This is not what the Tribunal did.  Nor is it what the Tribunal is obliged to do.

A Full Court of this Court in Minister for Health v Thomson (1985) 8 FCR 213 (Fox, Beaumont and Wilcox JJ) considered the provisions of s 119(1)(a) which at that time were in identical terms to the present paragraph although the legislative scheme did not then involve a Committee or determining officer.  The Court concluded and, with respect correctly this was accepted by the Tribunal, that the Tribunal had no power to accept fresh evidence - it is confined to a consideration of the papers referred to it by the Minister.  As Wilcox J said in that case at 227:

“The role of the Tribunal is to consider the matter to which the determination relates having regard to the grounds set out in the request, the documents forwarded by the Minister ‘and any addresses made to the Tribunal during the proceedings on the review’ (s 119(1)(a)).  Significantly, there is no reference to further evidence.  The Tribunal’s task is to review the case by reference only to the existing material, and in the light of any addresses made to it on that material.”

It does not follow from the fact that fresh evidence is not admissible in the Tribunal that the role of the Tribunal is confined to accepting the Committee’s conclusions and merely reviewing on the papers before it the matters of penalty which the determining officer has specified.  That is inconsistent with the comments of Wilcox J to which we have already referred.  It is inconsistent also with the decision of Davies J in McIntosh v Minister for Health (1986) 17 FCR 463.  His Honour expressed the view (at 467) that the Tribunal had an obligation to determine whether or not to accept the recommendation made by the Committee; and see Tiong v Minister for Community Services & Health (1990) 93 ALR 308 at 311 per Davies J and at 320 per Spender J; and see too Determining Officer v Lusink (unreported, Sundberg J, 12 February 1998).

A tribunal is appointed to review the determination.  The word “review” is a word of wide meaning but dependent upon context: Re Brindle; Ex parte F B & F A McMahon Pty Ltd (1992) 35 FCR 506 at 508ff; followed in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261 per Mason CJ, Brennan and Toohey JJ.  Where a determination on its face would not be justified by a committee’s finding, having regard to the papers before the Tribunal, the evidence and report of the Committee (including a dissenting report) is part of the “matter to which the determination relates” (s 119(1)) on which the Tribunal has made an appropriate finding of inappropriate practice.  It is open, and indeed the Tribunal itself accepted this, for the Tribunal to take a different view from the Committee and set aside a determination, notwithstanding both that it is restricted to the papers before it and is reviewing the determining officer’s determination.

THE APPROPRIATE FORM OF ORDER

The present proceedings are judicial review by way of an appeal on a question of law from the Tribunal’s decision.  Dr Yung had not sought in other proceedings to set aside the Committee’s decision or the determination of the determining officer.  He refrained from doing so (no doubt deliberately) notwithstanding submissions that go to the validity of both the Committee’s decision and the determining officer’s determination.  Having regard to our views on the Committee’s procedure, it is unnecessary to consider whether the determining officer’s determination was flawed for failing to take into account matters outside the period with which the referred services were concerned or whether the Tribunal’s reasons were inadequate.  However, nothing in the statutory scheme suggests that the administrative discretion of the determining officer should be exercised without regard to events known at the date of the decision.  It has long been accepted as a general principle that administrative decisions should be made on the best and latest information available, and the Act should be construed accordingly, pursuant to the general rule stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 45, that:

“ … there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.”

On this basis, the approach of Davies J should be upheld.  We would agree also with the learned primary judge that, if this Court is to fulfil its obligations to resolve an appeal on a question of law, the Tribunal must give adequate reasons so that the question of law is made manifest.  A failure so to do implies that an error of law must have occurred.

On behalf of Dr Yung it is submitted that, if we are of the view that the decision of the Tribunal was infected with error, particularly in considering the report of the Committee whose decision and procedure miscarried, we should set aside the Tribunal’s decision and not refer the matter back to a Tribunal, whether or not differently constituted.  On behalf of the determining officer it is submitted that, in such event, the matter should be returned to the Tribunal on an undertaking that a Committee would be reconstituted to consider the reference and its conclusions would accordingly be given to the determining officer for remittal to that Committee to review the matter afresh.

The course submitted by the doctor leaves the real question of inappropriate practice forever undecided, notwithstanding that such an investigation properly conducted on relevant evidence might well establish the conclusion that the doctor was indeed guilty of inappropriate practice.  While the Tribunal could, as we have indicated, consider the evidence and report of the Committee, the conduct of these proceedings was infected with legal error and the Tribunal could do nothing except set aside the determination for the evidence would neither establish nor deny inappropriate practice.  In so saying, we do not intend to infer that an administrative decision, unchallenged, is necessarily void for that is not a matter which the Tribunal, an administrative body, could determine.  It is a matter for the Court in a challenge to the Committee’s decision to determine.  It has not.

The course submitted by the determining officer presents, however, great difficulties.  The Committee must report within 90 days.  Extensions must be requested before the expiration of the time or extended time in which the report was to be delivered.  There is also a time limit on a fresh referral which ensures that the course of a new referral is no longer open (two years).  It seems to follow that, as the Tribunal could in the circumstances reach no conclusion other than that the determination should be set aside, the submissions of the doctor are to be preferred.

In these circumstances, we would propose the following orders:

1.         Appeal allowed in part.

2.         The order below that the matter be remitted to a Tribunal differently constituted for further review be set aside.

3.         Decision of the Tribunal be set aside.

            In lieu thereof, it be ordered that the decision of the determining officer be set aside.

4.         Appellant to pay the First Respondent’s costs of the appeal.

5.         Appeal otherwise dismissed.

Associate:

Dated:              15 May 1998