FEDERAL COURT OF AUSTRALIA

Tankey v Adams [1999] FCA 683

ADMINISTRATIVE LAW – HEALTH – referral under the Health Insurance Act 1973 (Cth) in relation to a general practitioner alleged to have engaged in “inappropriate practice” – appeal from a decision of the Professional Services Review Tribunal considering a determination made by a Determining Officer – whether the Tribunal denied the appellant procedural fairness – whether the use of sampling invalidated findings – relevance of earlier counselling by the Health Insurance Commission – whether the Tribunal misdirected itself as to the weight  given to evidence of the appellant’s capacities and support from specialists and patients – roles of Tribunal, Committee and Determining Officer – discretion of Determining Officer in fixing restitution of Medicare benefits

WORDS AND PHRASES – “inappropriate practice”, “referral”, “vocationally registered medical practitioner”, “Medicare benefit”, “judicial power of the Commonwealth”, “procedural fairness”, “sampling”

The Constitution - s 51 (xxiiiA)

Judiciary Act 1903 – s 78B

Health Insurance Act 1973 (Cth)

Health Insurance (1993-1994 General Medical Services Table) Regulations 1993 No. 272

Huddart Parker & Co Pty Ltd & Appleton v Moorehead [1909] 8 CLR 330  referred to

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1985] 162 CLR 24  referred to

Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] 163 CLR 140  applied

Re Ranger Uranium Mines Pty Ltd & Ors; Ex Parte Federated Miscellaneous Workers’

Union of Australia [1987] 163 CLR 656  applied

Precision Data Holdings Ltd v Wills [1991] 173 CLR 167  referred to

Nicholas v The Queen [1998] 193 CLR 173  referred to

Re Minister for Health v Thomson [1985] 8 FCR 213  applied

Adams v Yung & Ors [1998] 83 FCR 248  discussed/applied

Collins v Minister for Immigration and Ethnic Affairs [1981] 36 ALR 598  referred to

Grollo & Howard v Bates [1994] 125 ALR 492  referred to

Peverill v Backstrom & Ors

Yung v Adams [1997] 150 ALR 436  referred to/applied/discussed

Peverill v Backstrom & Ors [1994] 33 ALD 477, on appeal [1994] 127 ALR 197

Artinian v Commonwealth & Ors [1996] 43 ALD 235  referred to

JAMES ADRIAN TANKEY V ANTHONY ADAMS

QG 53 OF 1997

THE HON JUSTICE MARCUS EINFELD AO

SYDNEY (heard in Brisbane)

31 MAY 1999

THE COURT ORDERS THAT:

1.      the appeal be allowed in part

2.      the Tribunal’s determination of 18 April 1997 that Dr Tankey repay to the Commonwealth the sum of $580,576.00 be set aside

3.      the respondent’s determination of 16 August 1996 that Dr Tankey repay to the Commonwealth the sum of $258,277.45 be restored

4.      the appeal be otherwise dismissed

5.      the appellant pay two thirds of the respondent’s costs

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellant, Dr James Tankey, appeals under section 124A of the Health Insurance Act 1973 (Cth) (the Act) from a decision of the Professional Services Review Tribunal (the Tribunal) concerning a determination made by the respondent Dr Anthony Adams as  Determining Officer that Dr Tankey had engaged in “inappropriate practice” as defined in section 82(1)(a) of the Act.  The appeal is limited by the Act to a question of law.  The ultimate question in the matter is whether the appellant has established any legal ground on which the decision of the Tribunal should be varied or set aside.

2                     Dr Tankey is a vocationally registered general medical practitioner.  Since 1977 his practice has been principally at 16 East Street Ipswich.  He also practises at the Ipswich After Hours Centre at 2 Wharf Street Ipswich and at Rosewood Road, Amberley.  Dr Tankey is a sole practitioner but has the help of an assistant on Wednesday afternoons.  He has a special interest in infertility, rheumatoid disorders and spinal manipulation. He shares the treatment of infertile patients with a specialist obstetrician and gynaecologist in Brisbane. 

3                     On 26 July 1995 the Health Insurance Commission (the Commission), acting pursuant to section 86 of the Act, referred to the Director of the Tribunal (the Director) for investigation  “the conduct of Dr James Adrian Tankey in relation to whether he has engaged in inappropriate practice in connection with the rendering and initiation of Medicare services as defined by the Act” between 1 January and 31 December 1994 (the Referral).  The Director established Professional Services Review Committee No 2 (the Committee) on 16 August 1995 to express an opinion as to the appropriateness of aspects of Dr Tankey’s practice.

4                     The Committee studied the Referral.  It held hearings on 22 September 1995, 6 October 1995 and 22 November 1995 where it examined all available medical records of patients seen on one randomly selected day, viz. 117 patients on 7 June 1994.  The Committee went on to examine random samples of pathology tests and x-rays for 30 patients in each case, some samples of Dr Tankey’s referral letters for these and other expert services and records of some patients referred to other practitioners who were specialists.  Three expert witnesses gave evidence on the appropriateness of Dr Tankey’s structure and mode of practice with regard to time spent with patients, medical records and referrals, the general question being whether such a high number of services could be rendered competently and adequately in such a short period. The Committee’s principal concerns related to consultation time, medical records, pathology and diagnostic imaging requests, vocational registration and continuing medical education, preventive medicine and psychosocial problems in the practice, workload and practice organisation, and practice environment.  Dr Tankey strongly defended his mode of practice, insisting on his skills and capacity to perform this quantity of work as he works hard and for long hours in a well organised and efficient manner, and provides his patients with a high level of care.  On 12 January 1996 the Committee published a report (the Report) finding that Dr Tankey had engaged in “inappropriate practice”.

5                     A copy of the Report was given to the respondent Dr Anthony Adams, as the Determining Officer, who was required by the Act to make a final determination and impose the disciplinary consequences.  On 16 August 1996 Dr Adams upheld the Committee’s finding that Dr Tankey had engaged in “inappropriate practice” and directed that Dr Tankey be counselled, required to make monetary restitution, fully disqualified from access to Medicare benefits for six months and partially disqualified for twelve months.  Dr Tankey then requested the Minister for Health and Family Services to refer the determination to the Tribunal for review.  On 18 April 1997, the Tribunal more than doubled the monetary restitution but otherwise affirmed Dr Adams’ determination.

6                     The appellant now asks the Court for the following orders:

·        A declaration that the Determination of the Tribunal dated 18 April 1997 is void and an order that it be set aside

·        Alternatively, a declaration that the directions for restitution and disqualification are void and an order that they be set aside

·        A declaration that the Report of the Committee is void

·        A declaration that the Determination made by Dr Adams is void and an order setting it aside

·        Alternatively, an order remitting the matter back to the Tribunal, or a differently constituted Tribunal, for further consideration according to law

·        An order for costs

THE LEGISLATIVE CONTEXT

7                     Part VAA of the Act, which includes section 86, deals with the Professional Services Review Scheme (the Scheme) “under which a person’s conduct can be examined to ascertain whether inappropriate practice is involved”: s 82.  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 review of conduct which consists of the Director and the Professional Services Review Panel (“the Panel”): s 80(2).  Division 3 (ss 86-94) concerns referral of a person’s conduct for review.  Section 86 provides that the Commission may, in writing, refer to the Director the conduct of a person relating to whether a person has engaged in “inappropriate practice” in the rendering or initiation of services, during the 2-year period preceding the referral, and on or after 1 September 1993.  Provision is then made for the Director to decide whether to set up a Professional Services Review Committee (Division 4 – ss 94-106P) to consider the conduct: s 80(3).  Section 80(5) introduces Division 5 which in sections 106Q-106X provides for a Determining Officer to impose disciplinary measures in the light of the findings of inappropriate practice by the Committee, including that the person under review be reprimanded and/or counselled, repay the Commonwealth an amount equivalent to any Medicare benefit paid for inappropriate services, and be fully or partially disqualified.

8                      Pursuant to section 82(1)(a), “inappropriate practice” relevantly means that a practitioner’s conduct in connection with the rendering or initiation of services is such that a Committee could reasonably conclude that:

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 he or she rendered or initiated the services

9                     By section 81(2)(a), “general medical practice is taken to be a specialty”.  For relevant purposes “general practitioner” (GP) is defined in Part 1 (Rules of Interpretation) of the Schedule to the Health Insurance (1993-1994 General Medical Services Table) Regulations 1993 No. 272, (the Schedule), as:

(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 some other training program recognised by the RACGP as being of an equivalent standard.

Dr Tankey was a vocationally registered GP under section 3F and is therefore a specialist under the Scheme.

10                  In Yung v Adams [1997] 150 ALR 436 Justice Davies at first instance gave an explanation as to the location of constitutional power for the Act, subject to which the concept of “inappropriate practice” should be read.  His Honour stated at 442 that

The Commonwealth Parliament is empowered by s 51 (xxiiiA) of the Constitution to enact laws with respect to:

The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances.

The Federal Parliament has no general power to regulate the activities of medical practitioners.  Therefore, under Pt VAA, the power to discipline in relation to “inappropriate practice” must be understood as a power to discipline in relation to conduct which is related to the payments which are made by the Commonwealth under the Act by way of medical benefits and the like.  Accordingly, the reference to “inappropriate practice” in s 82 refers to conduct in relation to which Commonwealth benefits were paid or payable and in respect of which the medical practitioner failed in some way to meet the standards of the general body of the members of the profession in which the services were rendered.  The Commonwealth’s interest is to see that the services which are provided by a medical practitioner and for which a Commonwealth benefit is or may be claimed are services in respect of which the medical practitioner provides due care and skill, that a claim if made is brought under the correct item and that overservicing does not occur…the proceedings are disciplinary in nature.  Section 106U prescribes directions in the nature of reprimand, counselling, repayment to the Commonwealth of Medicare benefits paid for inappropriate services and partial or total disqualification.  These are all directions of a disciplinary nature. The nature of the disqualification referred to is dealt with in s 19B of the Act which provides, in effect, that Medicare benefits are not payable in respect of professional services if the practitioner is disqualified.

These views were not varied on appeal although his Honour’s decision was partly set aside: Adams v Yung & Anor [1998] 83 FCR 248.

11                  The Minister may make guidelines, which must be complied with, about the content and form of referrals: ss 87(2) – (3).  By “Guidelines as to the Form and Content of Referrals” made in May 1994, the Minister required that the referral specify whether it relates to “specified services”, “services of a specified class”, “services provided to a specified class of persons” or “services provided within a specified location”: s 87(1).  “Service” means a service for which a Medicare benefit was payable at the time it was rendered: s 81(1). 

THE REFERRAL

The complaint

12                  For the purposes of s 87(1), the referral of Dr Tankey related to all services rendered and initiated by him from all his practice locations and all institutions visited by him in 1994.  It was accompanied by a considerable amount of statistical material relating to Dr Tankey’s practice during the referral period.  As to services rendered it stated that Dr Tankey provided 27,048 services to 5,556 patients, averaging 552 services per week for the 49 weeks worked during that period.  The cost to Medicare for these services was $580,576 or $284.40 per patient.  As measured against the peer group of active Australian general practitioners, his level of services was well above the ninety-ninth percentile (being 15,000 services).  His level of services involved an estimated sixty-five hours per week in direct patient contact.  The Referral stated that more than 80 services a day were provided on 191 days, more than 100 services on 140 days, more than 120 services on 74 days, more than 140 services on 26 days, and more than 160 services on 5 days.  On one day during the period, Dr Tankey provided 181 services.  The Referral stated:

The Health Insurance Commission believes the appropriate level of clinical input could not be maintained for such long hours on a regular and continuing basis.

13                  In the same period, Dr Tankey referred 1,818 (32.7 per cent) of his patients for 10,266 pathology services. In relation to this finding, the Commission stated:

The Health Insurance Commission believes the pathology services initiated by Dr Tankey were not reasonably medically necessary for the care of the patient.

14                  Dr Tankey also referred 1,552 patients (27.9 per cent) for 3,186 diagnostic imaging services.  The Referral said:

The Health Insurance Commission believes the diagnostic imaging services initiated by Dr Tankey were not reasonably medically necessary for the care of the patient.

15                  Finally, Dr Tankey referred 1,306 patients (23.5 per cent) to specialists or consultant physicians, as to which the Commission stated:

The Health Insurance Commission believes the referrals to specialists initiated by Dr Tankey were not reasonably medically appropriate for the care of the patient.

16                  The impetus for the decision of the Commission to refer the matter for investigation was thus a concern that Dr Tankey was unable to provide an appropriate level of clinical input when consistently rendering such large numbers of services daily or working excessively long hours.  There was further concern that Dr Tankey’s initiation of pathology, diagnostic imaging and specialist referrals was inappropriately high.

17                  The Commission stated that it took account of:

·        the servicing patterns of all active general practitioners in Australia

·        the findings of the Interpractice Comparison Survey  of about 1,000 GPs conducted by the Royal Australian College of General Practitioners (RACGP) in 1994 which showed that the GPs surveyed spent an average of 37.5 hours per week in contact with patients and worked 51 hours per week.  The top 25 per cent of practitioners saw 164 patients per week corresponding to an annual average of 8,469 services and equating to approximately 13 minutes per consultation

·        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 vary according to clinical need”

18                  In order for Dr Tankey to conform to these draft guidelines, it was said that he would need to work continuously in one location for at least 13.3 hours to provide eighty services in a day, and for 16.7 hours to provide 100 services in a day.

19                  A written opinion of Dr Jill Gordon, consultant to the Commission, based on her own experience and extensive knowledge acquired as a Medical Educator and NSW State Director of the Family Medicine Program of the RACGP, and past Chairperson of the NSW Faculty of the RACGP, concluded that the conduct of Dr Tankey was unacceptable to the general body of GPs in a number of respects:

(a)   The excessively high level of servicing provided by Dr Tankey in 1994, particularly in view of the high total number of patients and their relatively low age

(b)   The high average number of weekly services provided, requiring excessively long hours incompatible with an adequate standard of care

(c)    The possible misclassification of level B consultations

(d)   The performance of procedures with such a large volume of consultations incompatible with appropriate care, skill and regard for patients

(e)    The excessive requesting of pathology and diagnostic imaging, particularly since there are fewer elderly patients in Dr Tankey’s practice compared with other general practitioners in Australia

(f)     The excessive number of referrals for specialist opinion and the provision of inadequate relevant information to the specialists concerned

20                  The Referral added that Dr Gordon also based her view on the research of Professor John Howie which confirmed time as a proxy measure for quality care in general practice.  For those reasons the Commission concluded that Dr Tankey’s conduct in connection with the rendering or initiating of Medicare services was unacceptable to the general body of GPs.

21                  In its “background” on Dr Tankey, the Referral noted that following a decision of the Commission, Dr Tankey was counselled by Dr John de Vries on 6 July 1994 because of his pattern of practice and because he was identified by the Commission’s “post payment classification system” as having a practice profile within abnormal range when compared with his peers.  His statistical data showed that he rendered more services than almost any other general practitioner in Queensland.  The written record of that counselling displays Dr Tankey as explaining that his success in practice was due to making himself available and never turning a patient away from the surgery.  The Tribunal also revealed that he had earlier been visited by medical advisers from the Commission in 1989, 1991 and 1992, on each of which occasions Dr Tankey’s attention was drawn to the high number of services he provided per year, the high number of services per day and the number of his pathology requests. 

22                  The Referral contained a table comparing the total number of services rendered by general practitioners in Australia in the 1994 calendar year.  It showed that the overwhelming majority of general practitioners in Australia rendered approximately 5,000 services in that year, with the ninety-fifth percentile rendering 12,000 services.  Dr Tankey was located at an extreme end of the table where there are no percentiles.  With 27,048 services during the referral period, Dr Tankey claimed more than five times the services of most general practitioners in Australia.

23                  The Referral showed that Dr Tankey provided a wide variety of services including surgery, excisions, flap and wound repairs, obstetrics, and assistance at operations, as well as surgery consultations and home, institution, hospital and nursing home visits.  It detailed the doctor’s daily movements, including times spent at his principal practice, other practices, hospital, house and other “out” calls, a claimed five “freebies” per day, three to four “15 minute” services per day and the like, and personal extra curricular activities such as golf and playing the guitar.  It included a graph revealing that Dr Tankey worked every day of the week, with a majority of services rendered on Mondays (average 123), Tuesdays (average 110) and Thursdays (average 102).  These calculations did not take into account travelling time or time taken for meals or other breaks, nor was any consideration given in these calculations for:

… services provided to the Department of Veterans’ Affairs beneficiaries (900 services in 1994), services provided under worker’s [sic] compensation, third party insurance, life insurance or services for medico-legal purposes. Such services are not covered by Medicare and do not form a part of this referral.  As Ipswich is a mining town and Dr Tankey’s practice has a high proportion of young people, it could be anticipated that Dr Tankey would have a significant number of worker’s [sic] compensation claims.

24                  The respondent’s written submissions to this Court included a table which incorporated at least some of this additional information in respect of Dr Tankey’s practice in the period in question (the Table):

25                  The relevant services and fees referred to in the Table with respect to levels A, B and C are found in Part 2 of the Schedule entitled:

SERVICES AND FEES

ATTENDANCES

GROUP A1 — GENERAL PRACTITIONER ATTENDANCES TO

WHICH NO OTHER ITEM APPLIES

26                  These levels are determined and differentiated by the nature of the service that the patient seeks or requires:

27                  Level A services (item 3) involve:

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

28                  Level B services (item 23) involve:

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

29                  Level C services (item 36) involve:

Professional attendance at consulting rooms (not being a service to which any other item applies) by a general practitioner involving taking a detailed history, an examination of multiple systems, arranging any necessary investigations and implementing a management plan in relation to 1 or more problems, and lasting at least 20 minutes, or a professional attendance of less than 40 minutes’ duration involving components of a service to which item 44 applies

30                  The Referral stated that Dr Tankey’s ratio of level B consultations to level A consultations of 4000:1 compared unfavourably with the Commission’s experience of a usual ratio of approximately 13:1.  The Commission’s conclusion was that in the period in question Dr Tankey worked around 80 hours per week, every week, seeing around eight patients per hour in the summer, and nine per hour in the winter.  Yet the RACGP guidelines provided for a standard of 6 patients per hour (ie an average of not less than ten minutes per level B consultation).  In this event Dr Tankey would have needed to work ninety-two hours per week to see all his patients and deal with them adequately.

Notice of the Referral

31                  Section 88(1) of the Act provides 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.  By subsection (2) it is provided that 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.  It is not clear whether any such submissions were made but if made they were obviously not successful.  Section 89(1) of the Act provides that within 28 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”.

THE COMMITTEE’S PROCEEDINGS

32                  The Committee consisted of Dr Frank Fry (Chairman), Dr David Backstrom and Dr Mark Matthews, each of whom was a “vocationally registered general practitioner”.  It wrote to Dr Tankey on 29 August 1995 attaching a Notice of Hearing pursuant to section 102 of the Act.  This section provides that the Committee must give a person under review at least fourteen days written notice of the time and place proposed for a hearing and include particulars of the matter to which the hearing relates.  The hearing, to be held on 22 September and 10 October 1995, was to consider whether Dr Tankey had engaged in “inappropriate practice” in the rendering of particular services.  The letter also informed Dr Tankey of the way in which the hearing would be conducted:

After formal introductions, I [Dr Fry] as Chairperson, will deliver an opening statement, explaining the hearing process in relation to the referral.   Documents before the Committee (including those referred to in Schedule 1 of the Notice) will be tendered into evidence after which I will ask you to provide details of your professional training and experience.

You will be invited to address the Committee regarding the referral – indeed, throughout proceedings, please feel free to address the Committee on any relevant matter.

As a guide, the Committee will be interested in:

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

pathology and radiology referrals;

referrals to consultants;

ancillary services and arrangements;

absences from the practice, ie holidays; and

your understanding of your professional responsibilities under the Medicare programme and in particular, 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;

the visits and reports from HIC Medical Advisers.

…

In closing, I would like to assure you that the Committee will endeavour to conduct this inquiry with undue formality [sic], in that it is intended that proceedings be more in the form of a professional discussion.

33                  At the first sitting of the Committee, Dr Tankey was accompanied by his barrister/accountant, Mr R. W. Corrie.  During the hearing Dr Matthews said to Dr Tankey (T10):

…this is not an old fashioned Medical Service Committee of Inquiry. This is a Professional Services Review Committee, and we are your peers on this Committee.  We do not represent the HIC…We are all general practitioners, as you are, and we will be looking at the issues as your peers, not in any adversarial role.

34                  When asked about the function of the sister at his main practice, Dr Tankey explained (T31):

The function of the sister in my practice is very important because…she saves me at least 3 to 4 hours a day that I can spend consulting that I would be doing treatments, in a practice like that, and this is where I have tried to explain to John de Vries the ability to – the Health Insurance average says you see seven to eight patients an hour, and I do, and they get quality time and undivided time when they see me.

But utilising a sister to that degree and saving me four hours would be the equivalent of me spending 12 minutes – 11 to 12 minutes with a patient but doing all the treatments myself…I will have examined the patient and made the diagnosis and decided what treatment I want done.  She does the treatment…Nursing procedures.

35                  The Committee also heard evidence from Mrs Tankey who acts as a sister/nurse in the surgery.

36                  During the Committee’s second sitting, the Chairman made several comments by way of clarification of the issues before the Committee (T172, 176).  One of them was:

No, no nobody is suggesting that you are overservicing…I think that your practice is quite good, and if you did not have the volume of patients and you were…taking more time with your preventative things and keeping better records.

37                  A particular case raised with the appellant by one of the Committee members was his failure to report in his notes a finding of a breast lump later diagnosed as cancerous.  I understand that the purpose of a medical record is partly to remind the doctor and partly to inform another interested person of a patient’s situation should that other person be required to treat the patient.  The appellant admitted that his omission in this case was not a particularly good thing.  But the evidence established that this admission does not amount to a concession that he had not given reasonable care and skill to the majority of patients he saw.  Similarly, his failure to weigh diabetic patients, despite the general view of the Committee that it should be done, does not establish conduct amounting to “inappropriate practice”.  These and other similar examples were relevant, not for themselves, but to assess whether the necessary elements of inappropriate practice were present in this case.

38                  During the Committee’s third sitting, it heard expert evidence from three general practitioners, Dr David Brand, Dr Brian Maxwell McCrossin and Dr Robert Stanley Brian Kable.  It is not necessary to quote from their evidence.  In summary they expressed views consistent with the propositions advanced by the Commission in the Referral.

39                  Dr Tankey explained and stoutly defended his practice methods and submitted letters of support from several specialists and survey forms completed by a number of his patients on their satisfaction with his practice.

THE COMMITTEE’S REPORT

40                  The Committee’s reasons for its finding that the conduct of Dr Tankey “in relation to the referred services was unacceptable to the general body of vocationally registered general practitioners” were summarised as follows:

Dr Tankey, having developed a consistent pattern of extremely high and rapid throughput of patients, has abdicated from the professional responsibility required of allocating an appropriate time to elucidate and address patients’ health problems, and to record a proper medical history.  The consistent high throughput inevitably leads to a lack of time to address the relevance of investigations, both of pathology and diagnostic imaging, and to allow proper professional transfer of medical information to specialist colleagues.

The consultation time allowed for each patient is insufficient to allow appropriate practice.  Having developed and maintained a very large patient base, this has not allowed for appropriate time for each patient (Dr Tankey in evidence stated that he made efforts to maintain his patient base).  The claim that his superb organisation allows him to consistently consult at three times the rate of the 75^th percentile of the Inter Practice Comparison Survey (IPC) 1994 of the Royal Australian College of General Practitioners (RACGP) and to practice appropriate medicine, is not sustainable.

His medical records are inadequate.  They frequently do not indicate the reason for the consultation.  They contain virtually no past history.  The progress notes do not indicate the clinical progress of the patient.  There are no management schedules.  Major diagnoses are not recorded.  Consultants’ comments and surgical interventions are not noted on the medical record but are kept separately.  Allergic status is rarely recorded.  His medical records would be virtually useless as evidence in a court of law.  A body of opinion would hold that the medical notes are an “aide memoire” to the practitioner, but Dr Tankey’s notes would seem too brief even for this purpose.

His poor attitude to preventive medicine and the psycho-social requirements of his patients would not be acceptable to the body of general practitioners.

41                  The Committee dealt in detail with some specific issues:

Consultation time

42                  Taking into consideration the number of patients booked per hour (nine), the number of recorded services, the claimed five “freebies” per day and the three to four “15 minute” services per day, procedures, other consultations not covered by Medicare, travelling time between practice locations, home visits, hospitals and nursing homes, the Committee stated that it is likely that many consultations may have lasted for as little as three to four minutes.  The Committee considered that the time intervals allocated by Dr Tankey for the care of his patients did not allow for “appropriate professional care”.

Medical records

43                  The Committee considered that Dr Tankey had demonstrated some remarkable recall during the hearing when questioned about several randomly selected patients.  Nevertheless there were some important facts that he did not recall.  Despite his claims that his records are adequate for his purposes, they are in fact extremely brief and provide little information for any doctor reviewing them.  The Committee made specific conclusions as to Dr Tankey’s medical records:

·        The records are of poor quality as the handwriting is small, cramped and difficult to read, “but this is probably no worse than many of his peers”

·        The notes are minimal and the presenting complaint is only sometimes recorded

·        Allergies are rarely recorded, although Dr Tankey claims that he records penicillin allergy in red ink on the front of the file

·        Immunisation status is rarely recorded except in relation to Triple Antigen etc. for infants

·        Past problems are virtually never recorded and clinical findings are extremely brief. Blood pressures are the most commonly recorded findings

·        Without the aid of pathology reports, x-ray reports and the occasional notes made by the nurse, it would be difficult to arrive at a provisional diagnosis for many of the patients.  Moreover, “for some patients with large files no provisional diagnosis can be made on the evidence provided in the file”

·        Consultants’ letters are filed separately and are not a part of the medical record.  No summary of the consultants’ comments appears on the file: “A well organised practitioner would have specialist reports or summaries readily accessible if they were needed”

·        On examining the records of some of the more complicated cases, the Committee was unable to ascertain the current problem of the patients

44                  The Committee went on to say:

The Committee is unable to determine if, as Dr Tankey states, he provides acceptable treatment to his patients in the form of management and investigation of their presenting complaint.  His medical records do not provide the information necessary to substantiate his claims.  Even if Dr Tankey’s claim is accepted, his practice of restricting management and treatment to the presenting symptom is not appropriate for a general practitioner.

There is ample evidence to support the contention that the medical record reflects the overall quality of the care provided.  Most of this evidence is of a positive nature, ie, the better the notes the higher the probability of a more comprehensive service (Perry & Caine 1990).  There is also evidence that the occurrence of clinical incidents (i.e. mishaps) is largely system based and occurs at the stages of data acquisition, data recording, data transfer and data recall and analysis.

Three experienced general practitioners gave evidence that good medical records were essential to the delivery of proper medical care.  After having examined a sample of Dr Tankey’s medical records, all three witnesses suggested that these records were grossly inadequate and even useless for a relieving doctor.

The Committee was concerned at Dr Tankey’s comment that he sees no reason for keeping a better medical record “As long as I can use it why change”.  However, at other times during the hearing, Dr Tankey conceded that his records were too brief and he had made a conscious effort with the rubber stamp system to improve.

Pathology

45                  The cost of Dr Tankey’s ordering of pathology services per patient was at the ninety-fifth percentile in comparison to all active GPs in Australia.  Scarcity of clinical information in the progress notes rendered it difficult for the Committee to determine why the tests were done and it was necessary to study other reports attached to the file in order to formulate a tentative opinion.  The Committee concluded:

… in general terms the Committee considers that a consistently high rate of patient throughput does not allow for proper history taking, examination and consideration of the presenting problem, leading to an early recourse to a pathology request.

Diagnostic imaging requests

46                  Dr Tankey was in the eighty-fifth percentile of all active Australian GPs in his ordering of diagnostic imaging services.  Two examples of apparently inappropriate ordering were given in the sample:

·        barium meal in a 16 year old with nausea of apparent short duration

·        x-ray of the whole spine of a 19 year old male with a short history of low back pain

47                  Six cases were found in which it was difficult to be certain of the appropriateness of the ordering of services because of the poor notes.  The comments made by the Committee in relation to the ordering of pathology services were also applicable to Dr Tankey’s ordering of diagnostic imaging services.

Specialist referrals

48                  The Committee obtained a sample of referral letters written by Dr Tankey.  The referrals conveyed little relevant clinical information, lacking history, examination findings or medication lists, which is the requirement stated in the definition in the Medicare Benefits Schedule in order for a referral to be valid.  Dr Tankey told the Committee that he had not “read the legislation on what is required”.  The Report stated (p13):

On consideration of the evidence given by Dr Tankey and the expert witnesses, and examination of a number of referrals, the Committee is of the opinion that the referral letters are inappropriate.

Vocational registration and continuing medical education

49                  Dr Tankey gave evidence that he fulfilled the minimum requirements for continuing medical education by reading journals, completing journal quizzes, attending an occasional drug company-sponsored dinner and by submitting five case histories from his practice thus enabling him to remain on the Vocational Register.  The Committee adopted the views of the expert witnesses that continuing medical education is a vital part of professional practice and that professional interaction with colleagues is vital in this process.  It was not enough to depend solely on discussions with specialists regarding referred patients.

Preventive medicine in the practice

50                  The Committee found that Dr Tankey had a dismissive attitude to active preventive medicine other than the provision of immunisations for infants.  The routine provision of Papanicolau (Pap) smears was only performed at the request of the patient.  Dr Tankey stated “that he did not consider it a part of his responsibility to actively encourage his patients to be immunised”.  The Committee endorsed the opinions of the expert witnesses that the “practice of preventive medicine was an integral part of effective general practice”.

Psycho-social problems in the practice

51                  Dr Tankey admitted a reluctance to involve himself in the psycho-social problems of his patients in spite of the fact that this makes up a large portion of general practice, particularly in what all agreed was a depressed socio-economic area.  The expert witnesses all considered that an involvement in the management of psycho-social problems was an integral part of general practice.

Workload and practice organisation

52                  The Committee did not accept that the claimed superior organisation of Dr Tankey enabled him to see patients at effectively two or three times the rate of other GPs who are also shown to be efficient practice managers.

Other problems in the practice

53                  There were a number of other matters that caused the Committee concern:

·        Dr Tankey wears no mask or sterile gloves when performing minor surgical procedures in his rooms

·        His practice nurse performs cryotherapy for skin lesions, a procedure which the Committee believed should be carried out only by a medical practitioner

·        Dr Tankey does not record objective measurements of patient progress such as spirometry in severe asthmatics, blood glucose levels in diabetics, or weight measurements in obese patients.  “He judges weight by looking at a patient”

·        Prescribed pharmaceuticals were rarely recorded and it was even difficult to guess the reasoning behind the prescription.  Further, the records could not substantiate a clinical reason for the frequent vitamin injections received by a number of patients

Practice environment

54                  The Committee acknowledged their understanding of literature which shows that people in underprivileged areas have more health and social problems and require more time during consultations to resolve their problems.  Yet Dr Tankey’s

inadequate record keeping, his reluctance to provide psycho-social counselling, his failure to take objective clinical measurements and his attitude to preventive medicine has a direct correlation with the minimal time allocated to each patient.

Quality care

55                  The Committee found that most GPs would accept that quality care requires (Report p18):

·        that the patients’ perceived needs be satisfied within the confines of accepted ethical behaviour

·        provision of an acceptable standard of clinical management including preventive medicine strategies

·        provision of adequate services in the surgery and out of hours

·        provision of confidentiality

·        provision of an adequate medical history which would include some or all of the following:

            past problems and their management

            allergies

            immunisation status

            social history

            family history

            preventing problem and its management, and

            preventive care strategies

56                  The Committee would expect the more complicated records to include all or most of these matters although a number of them are not essential for the management of patients presenting with minimal problems.

Dr Tankey’s defence

57                  Because the specialists were not likely to be cognisant of the facts contained in the Referral and what was elucidated at the hearing, the Committee considered that their letters of support were entitled to little weight.  Likewise, the Committee accepted the evidence of the expert witnesses that patient surveys are not a strong indicator of what the profession would regard as acceptable medical practice as there is more to quality care than satisfaction of patients.

RACGP Draft Entry Standards

58                  On the evidence available, the Committee concluded that Dr Tankey’s practice would not be eligible for accreditation in using the RACGP Draft Entry Standards on the grounds that:

·        consultations are too short (Standard 1.2)

·        the medical record is inadequate (1.4)

·        health promotion, risk education and prevention of disease strategies are minimal (1.7)

59                  In addition, the Committee concluded that “because of low time and clinical input per patient, Dr Tankey’s practice of medicine is inappropriate”.  The Committee went on to say that:

Dr Tankey could not substantiate his continuing membership on the Vocational Register [and] would need to undertake remedial action with regard to all those areas of concern highlighted in this report.

DETERMINING OFFICER

60                  In Yung at first instance Justice Davies explained the role of the Determining Officer in the process at 453:

After a report of a Committee has issued, it must be given to the Determining Officer appointed under s 106Q of the Act. The Determining Officer gives a copy of the report to the person under review.

Once the Committee has reported a finding of inappropriate practice, s 106S provides that:

(1)   If the report contains a finding that the person under review has engaged in inappropriate practice in connection with rendering or initiating some or all of the referred services, the Determining Officer must:

(a)     make a draft determination in accordance with section 106U relating to the person under review; and

(b)     within 14 days after receiving the report, give copies of the draft determination to the person under review and to the Director.

(2)   The draft determination must be accompanied by a statement inviting the person under review to make written submissions, within 14 days, suggesting changes to the draft determination.

(3)   Within the 14 day period starting on the day on which the person under review receives a copy of the draft determination, he or she may make such written submission to the Determining Officer.

Section 106T requires that “the Determining Officer must make a final determination” and s 106U provides that “A determination must contain one or more of the following directions”, the directions being then specified.  Accordingly once the Committee had reported a finding of inappropriate practice, the Determining Officer was obliged to make a determination which would include directions of a disciplinary nature.

THE DETERMINATION

61                  Dr Adams’ final determination was given to Dr Tankey on 21 August 1996.  The respondent repeated the Committee’s finding of inappropriate practice and directed that:

i)                    in accordance with paragraph 106U(1)(b) of the Act, Dr Tankey be counselled by the Director of Professional Services Review or the Director’s nominee;

ii)                  in accordance with paragraph 106U(1)(c) of the Act, Dr Tankey repay to the Commonwealth the amount of $258,277.45, being an amount equivalent to the Medicare benefits paid for 50% of the inappropriate services rendered during the period of the referral under items 3, 23, 24 and 36 in Group A1 of Part 2 of the General Medical Services Table;

iii)                in accordance with subparagraph 106U(1)(g)(i) of the Act, Dr Tankey be disqualified for a period of 12 months from the time when this determination takes effect in respect of the provision of all services to which an item relates in Group A1 of Part 2 of the General Medical Services Table; and

iv)                in accordance with paragraph 106U(1)(h) of the Act, Dr Tankey be fully disqualified for a period of 6 months from the time when this determination takes effect.

62                  Dr Adams gave the following reasons for his determination:

6.1              The extent and scale of the conduct discloses inappropriate practice of a most serious nature and leads me to conclude that a determination proportionate to the serious nature of the case is appropriate.

6.2              Dr Tankey’s submissions have not lead [sic] me to change this view.

6.3              The inappropriate practice found by the Committee:

(a)   was not an isolated incident but was extensive; and

(b)   resulted in the Committee expressing concern in relation to a wide range and a large number of elements of Dr Tankey’s practice including:

-         a consistent pattern of extremely high and rapid throughput of patients;

-         140 patients daily on 26 days of the year and 120-130 daily on 48 days of the year.  The Committee concluded that, based on a median consulting time of 7.33 minutes (the time provided by Dr Tankey and referred to in his submission of 8 July 1996) it would require Dr Tankey to consult for 15.9 hours for the 48 days and 17 hours for the 26 days;

-         insufficient consultation time to allow appropriate practice;

-         an abdication from the professional responsibility required of allocating an appropriate time to elucidate and address patients’ health problems;

-         inadequate medical records;

-         failure to record a proper medical history;

-         major diagnosis [sic] were not recorded and allergic status rarely recorded;

-         a poor attitude to preventive medicine and psycho-social requirements of patients.

6.4              Dr Tankey did not acknowledge to the Committee the need to modify his practice behaviour.  Dr Tankey has advised that one change has been made following the observations of the PSRC and that he now provides a card in front of each patient file on which to endorse a medical history and a list of current medication.

THE REVIEW TRIBUNAL

63                  Dr Tankey requested the Minister to refer the determination of Dr Adams to a tribunal for review.  He challenged the Committee’s (and Dr Adams’) findings of fact and alleged erroneous legal conclusions.

The Tribunal’s powers

64                  Part VA of the Act deals with the Tribunal.  Division 3 (ss 114-121) of this Part deals with references to these tribunals, as Justice Beaumont explained in the Full Court in Yung at 263:

·        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)).

65                  At first instance Justice Davies had said at 457:

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 medical 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 Health Insurance Commission which initiated the process, that the medical 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 medical 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.

66                  However, in the Full Court, Justice Beaumont stated 287-8:

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 the 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, s 119(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.

67                  In other words, Justice Beaumont seems to be saying that the Tribunal is empowered to review the determination of the Determining Officer, not the Committee’s findings, although it may give the Committee’s findings full or no weight.  On the other hand, the majority, Justices Burchett and Hill, stated at 301-2:

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.

68                  Taking into account the role of the Determining Officer who does not hear evidence but receives and considers the Report of the Committee, it is extremely difficult to derive a categorical conclusion as to what the precise role of the Tribunal is.  It either has no authority to set aside or even “depart from” a committee’s findings but may determine the weight to be given to those findings (per Beaumont J), or it has limited authority to set aside a determination based on the Committee’s findings (per Davies J), or it can take a different view from the Committee and set aside a determination (per Burchett and Hill JJ).

The Tribunal’s Determination

69                  The Tribunal, constituted by the Hon. Mrs Margaret Lusink, President, Dr Peter Joseph and Professor David Tiller, sat on 17 and 18 March 1997.  It dismissed Dr Tankey’s attacks on the Committee’s findings of fact on the basis that they were supported by the evidence before the Committee.  Dr Tankey also argued that the Committee had misdirected itself as to the onus proof and standard of proof.  On this subject the Tribunal cited Justice Beaumont in Re Minister for Health v Thomson [1985] 8 FCR 213 at 223:

…generally speaking concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings.

70                  Actually this citation was incomplete.  It reads in full:

Generally speaking concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceeding in the social security area.

71                  In my view, the principle applies equally to proceedings under the Health Insurance Act.

72                  Dr Tankey submitted to the Tribunal that the visits to his practice by Commission medical advisers in 1989, 1991 and 1992 were irrelevant.  Admissibility of evidence is a question of law but in my opinion there can be no challenge to the Committee’s treatment of these visits, with which the Tribunal agreed, as indicating that on at least three occasions Dr Tankey was made aware that his practising procedures were causing concern.

73                  Dr Tankey objected to the use of the statistics derived from a mathematical formula to determine the time he spent with patients.  In Artinian v Commonwealth & Ors [1996] 43 ALD 235 at 242, Justice Hill stated that:

There is absolutely no substance at all in the argument that reference cannot be made to the statistical material.  Not only is that material relevant but it may also, in a particular case, be highly cogent of inappropriate conduct.

74                  It is of course always necessary to guard against the use of statistics in an unthinking fashion or to become enslaved by them.  I have detected no sign that the Committee or the Tribunal did so here.  The statistics were used as guides or indicators to be put with other more direct evidence.  There was nothing impermissible in this process.

75                  Dr Tankey also contended that the three general practitioners who gave evidence to the Committee examined an inappropriate sample of medical records, but the Tribunal saw the sample as in line with comments made by the Commission about Dr Tankey’s records in the Referral.  I see no error in this approach.

76                  The variance between the order for restitution made by Dr Adams and that made by the Tribunal was explained by the Tribunal.  It stated that the reference in section 106U(1)(c) permitting an order to “repay an amount equivalent to any medicare benefit paid” cannot be interpreted as creating a discretion in the Determining Officer to direct that a percentage only of benefits received must be repaid.  The Tribunal held that the intent of the provision was that the restitution of moneys to the Commonwealth was to be for all benefits received for inappropriate services, and that Dr Adams had erred by ordering less than 50% to be repaid.

APPEAL TO THIS COURT

77                  By an Amended Notice of Appeal dated 21 August 1997, Dr Tankey has appealed the decision or determination of the Tribunal to this Court.  He raised nine questions of law and made further submissions following the decision of the Full Court in Yung.  He also gave notice of a constitutional matter as required by section 78B of the Judiciary Act 1903 but no Attorney General sought to intervene.  It is convenient to deal with the appellant’s submissions slightly differently to the way they were presented.

Judicial power of the Commonwealth

78                  The appellant submitted that the determination of the Tribunal was void because it involved the exercise of the judicial power of the Commonwealth.  Since the familiar passage in the judgment of Griffith CJ in Huddart Parker & Co Pty Ltd & Appleton v Moorehead (1909) 8 CLR 330, 357:

…the words “judicial power” as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.  The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.

there have been many attempts at defining what it is.  None has done so exhaustively.  Indeed, Justice Gaudron commented recently in Nicholas v The Queen [1998] 193 CLR 173, 207 that “The difficulties involved in defining ‘judicial power’ are well known”.  I gathered a number of the cases in Grollo & Howard v Bates [1994] 125 ALR 492.  There is no point in undertaking the task yet again.

79                  Under section 10(1) of the Act, the cost of a practitioner’s services attracts a Medicare benefit.  Rights conferred on a medical practitioner also include the authority to prescribe so that a pharmaceutical benefit is obtainable by patients.  By section 19B(2) of the Act, if a practitioner is disqualified from access to these benefits as a result of a relevant determination by a Determining Officer, Medicare and pharmaceutical benefits are not payable in respect of services rendered during the period of disqualification.  The six month full disqualification for Dr Tankey means that no Medicare benefit is payable in respect of services rendered by him in that period.  The twelve month disqualification has the effect that following the cessation of his six-month full disqualification, his services attract reduced benefits for six months.

80                  The appellant’s argument is that the rights to have his prescriptions attract a pharmaceutical benefit and his professional services a Medicare benefit under the Act are a valuable and in substance essential adjunct to his medical practice the loss of which deprives him of a significant legal entitlement.  The determinations of the Committee, Determining Officer and Tribunal affect these rights and the appellant’s capacity to carry on his profession.  He said that the Tribunal’s determination was based upon a review of the evidence before the Committee, and was reached by applying relevant principles of law to the facts it found.  The object of the Tribunal’s inquiry is thus “the ascertainment of legal rights and obligations” as permitted only by the exercise of the judicial power of the Commonwealth.

81                  The High Court stated in Re Ranger Uranium Mines Pty Ltd & Ors; Ex Parte Federated Miscellaneous Workers’ Union of Australia [1987] 163 CLR 656 at 666, with regard to the former Conciliation and Arbitration Commission:

The purpose of the Commission’s inquiry is to determine whether rights and obligations should be created.  The purpose of a court’s inquiry and determination is to decide whether a pre-existing legal obligation has been breached, and if so, what penalty should attach to the breach.

…

Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations.  But if its object is to ascertain what rights and obligations should exist, it is properly characterised as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.

82                  The Court went on to say that such an inquiry does not cease to be an exercise of arbitral power merely because the Commission may form an opinion as to the legal rights and obligations of the parties.  As pointed out by Mason CJ, Brennan, Deane, Dawson and Toohey JJ in Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] 163 CLR 140 at 149, if it is

… a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties...the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.

83                  The appellant submitted that the comments of the High Court in Precision Data Holdings Ltd v Wills [1991] 173 CLR 167 are particularly applicable to this case as the Corporations and Securities Panel involved there can be equated with this Tribunal.  The question there was whether past conduct, being the acquisition of shares, was unacceptable.  The Court said at 188-9:

The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it.  Thus, although the finding of facts and the making of value judgements, even the formation of an opinion as to the legal rights and obligations of the parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power.  Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power.

It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised.  So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power.  That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles.

Furthermore, if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the functions stands outside the realm of judicial power.

84                  In determining whether a body is exercising the judicial power of the Commonwealth, it is necessary to characterise the process taking place as being judicial or otherwise.  The whole system is to be examined: who is constituting the Tribunal, what powers do they have, what are the procedures, what are the results and what are the consequences.  Some have tried to draw the line between determining existing legal rights and obligations, and determining new rights and obligations.  Even if this distinction led anywhere in legal terms, I do not think it would resolve the question here as the Tribunal, acting in a regulatory capacity, has apparently involved itself in both areas.  Peer review of professionals is a well-known procedure which no-one has to my knowledge previously labelled as the exercise of judicial power.  Dr Tankey’s past activity has been declared as inappropriate by his peers.  In my opinion the Tribunal’s concurrence in this process and finding is not judicial in nature.

85                  On the disciplinary action taken as the result of peer review, a counselling order does not strike me as involving the exercise of judicial power.  On the other hand, it can certainly be a part of judicial power that a person be made to pay a fine or penalty, or to make restitution.  The fact that Dr Tankey has been ordered to pay back more than half a million dollars, amounting to his entire income for a year earned through personal exertion, is certainly a relevant issue.  He has presumably already paid tax on his 1994 income.  No doubt his nett income went to maintaining a family, paying school fees, and possibly paying off a mortgage.  Taking it from him now before tax is a very heavy penalty, and is of a kind that does indeed bear on whether it is the exercise of judicial power or not.  By contrast, the disqualification orders, which in relation to medical fees really mean the inability to obtain income by bulk-billing, or to have patients obtain by direct access the Medicare subsidy of the fees paid, is much more akin to a professional judgment than a legal imposition.

86                  The authorities say that the task to be performed in assessing whether judicial power is being exercised is global assessment.  On this basis, in my opinion, the Tribunal is not exercising judicial power and did not do so in this case.

Procedural fairness

87                  The appellant next contended that the Tribunal misdirected itself by concluding that it would only be in exceptional circumstances that a finding of inappropriate practice made by a Committee would be found to be unsustainable.  He maintained that the Act imposes no obligation on the Committee to give the person under review the right to

·        the application of the rules of evidence

·        cross-examine the makers of statements, only those called by the Committee to give evidence

·        call witnesses

·        legal representation

although, as it seems to me, it may do so if it wishes and will often do so especially in a serious case like this one.

88                  The appellant also said that the Act imposes no obligation on the Committee to take all or any particular or formal steps to inform itself as to the issues because by section 106(2), it may “inform itself on any matter in any way it thinks appropriate”.  Whether procedural fairness was provided must therefore be carefully scrutinised.  The appellant said it was denied to him.

89                  Allegations that procedural fairness has been denied have to be examined and evaluated in the context of a particular case.  There are now many important decision-making tribunals which are not bound by the rules of evidence, eg the Administrative Appeals Tribunal, the Refugee and Immigration Review Tribunals, and several others.  Even the Federal Court is so invested in its Native Title jurisdiction.  These provisions are intended to make proceedings less formal, but not unfair.

90                  The statutory framework is that bodies of the kind involved here are not bound by the need for evidence in the normal sense but can inform themselves of matters by quite informal mechanisms. The Committee is an administrative body consisting of general medical practitioners who hear and examine evidence and are entitled to bring to bear their own knowledge of the matters being considered, as long as they state what it is, and provide the practitioner with an opportunity to address it.  The Tribunal is not bound by the findings of the Committee or the Determining Officer but is to consider the matter which is the subject of the Referral and the Determination for itself, doing so with reference to the papers with which it is furnished (s 119).  The Tribunal is charged to consider the matter to which the determination relates, not on the basis of any new evidence, but of the papers, submissions and any exhibits.  On the other hand, they certainly have to do natural justice, make clear what they are investigating and how they are to go about their business.  Clearly they must give the persons before them an opportunity to reply.

91                  The procedure adopted at Committee hearings is within the discretion of the Chairman.  It was open to Dr Tankey to invite the Chairman of this Committee to exercise his discretion in particular ways.  As it happened, he did not tender any evidence which the Committee refused to receive.  He did not ask the Committee to hear evidence from any witnesses, nor did he request an opportunity to cross examine any “makers of statements”.  The Committee invited him to call three general practitioners as witnesses after he alleged that the Committee was not representative of the general body of general practitioners, but he declined to do so.  He was in fact accompanied at the Committee hearings by Mr Corrie, one of the counsel who represented him before the Tribunal, to whose presence with and assistance to Dr Tankey the Committee took no objection.

92                  The appellant asserted that the matter before the Tribunal is somewhere between a hearing de novo and a strict appeal and contended therefore that without the formal procedural safeguards it was “unsafe” for the Tribunal to fetter the exercise of its powers by deciding that only in exceptional circumstances should a finding of inappropriate practice made by the Committee be found to be unsustainable.  In my view this argument is incorrect. Although as Yung at first instance and in the Full Court showed (see paras 64-67 of this judgment), the matter is not at all clear and the legislative scheme requires rethinking and recasting, I agree with the other Judges that the Tribunal has the power to review a decision of, or proceedings before, a committee which were thought to be infected by such matters as a denial of natural justice, taking into account irrelevant considerations, not taking into account relevant considerations, or even Wednesbury unreasonableness looked at as a matter of reasonable peer judgment.  These are usual administrative law concepts.  In the absence of express legislative enactment, it would be unusual if, with the power to make findings from which significant penalties or sanctions can flow, a committee of doctors, absent any lawyers, could make such decisions without the opportunity for at least one full review on the merits. 

93                  On the other hand, the Committee undertakes the major task of considering and sifting the detailed evidence and, as a peer group, drawing the professional conclusions to which the evidence leads.  It would therefore also be unusual for the Tribunal to substitute an alternative assessment unless there was evidence of a major failure of obligation by the Committee of the kind indicated.

Sampling

94                  The appellant’s third submission as to the invalidity of the Tribunal’s determination was that it was founded on the report of the Committee whose findings were in turn based on the use of a sample or samples of services.  The appellant alleged that these samples were:

·        not produced in accordance with directions from the Minister issued under s 106K of the Act; or were

·        not used only in accordance with directions of the Minister; and were

·        used without any notification to the applicant of any finding the Committee proposed to make on the basis of the sample or samples of services.

95                  If these contentions of the appellant are that the report of the Committee was void for error of law, as these contentions seem to imply, proceedings under section 124A would generally be an inappropriate vehicle for their resolution.  In Yung at first instance, Davies J declined to declare the findings of the report of the Committee void, and in turn the determination invalid, for the following reasons:

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…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.

96                  I agree.  However, on the substantive question of the use of the sampling procedure, Justices Burchett and Hill stated at 299 on the appeal:

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… 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 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 99^th 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…

…

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.

…

It is true that the sampling procedure introduced in the 1993 Bill to which 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] 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. [my emphasis]

97                  The issue in these cases is whether the medical practitioner is providing adequate services to the patients, not how many patients the practitioner sees even though these matters are obviously connected.  If a practitioner saw 100 patients in a twelve hour day, that is, around seven minutes per patient more or less accounting for some time for pauses in between patients, the probability is that one patient would receive three minutes, another twelve, and so on.  There is no practicable notion of a perfect subdivision of time.  But an average length of consultations of about seven minutes appears somewhat generous in Dr Tankey’s case in light of the evidence that his weekly schedule in 1994 included the maintenance of a practice at Amberley, 13 kilometres from Ipswich, telephone conversations with patients and specialists, “homework”, squash 2 nights per week, guitar lessons, and ordinary domestic commitments.

98                  Justice Davies stated in Yung at 444:

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, [as alleged by the Commission].  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…

99                  Thus, it could be thought, the idea that a doctor could not possibly treat all patients appropriately if seeing 100 in a twelve hour day cannot hold true unless the treatment of every single patient, or at least of a large number, is investigated and assessed for due care, skill and appropriateness.  This is especially so when monetary sanctions are imposed based on the concept that every single patient seen in an entire year was inadequately serviced.  In fact some of the impugned services in this case were not even provided by Dr Tankey, but by a locum, albeit a small proportion and for a short period of time.

100               It appears that the Committee equated the sampling examples with lack of care for each patient seen on every day.  But adverse conclusions about the samples cannot equate to incompetence of treatment of all of the patients, especially where there is an absence of complaints from the patients.

101               In contrast to the criticisms of Burchett and Hill JJ in the Full Court in Yung as to that Committee’s narrow focus on some services rendered on a particular day, the respondent asserted that this Committee’s examination of services rendered on the randomly chosen day ranged over the entire history of those patients and not just the services rendered on that day.  He agreed that the records for those patients provided a basis for the criticism of Dr Tankey on the general protocols he observed in the treatment of all of his patients.  It appears to me from the transcript of the hearing before the Committee that not even every service performed on the chosen day was examined and that a detailed inquiry into the treatment of less than 10 patients took place.  The sample required is, however, a sample of services (s 106H) and not a sample of patients, and the Report stated that Dr Tankey acknowledged that the 117 records examined were representative of the general standard of his records.

102               Section 106K of the Act refers to directions as to sampling to be made by the Minister.  Clause 2.2 (Part 2) of the directions made requires that 30 exploratory random samples of services be examined.  The Committee complied with this request.  The directions then required the Committee to calculate the percentage of services in the exploratory sample that constitute “inappropriate practice” and round the percentage down to the next lower multiple of five per cent.  It appears that the Committee did not entirely comply with that provision nor with clause 2.3 which states that if the percentage determined in accordance with clause 2.2 is less than 20 percent, no further statistical inferences are to be made concerning the Referral.  However, except in respect of pathology and X-rays, and possibly specialist referrals where the identified cases may determine whether those referrals were reasonably necessary, I think that this scheme has little relevance where the particulars of the alleged conduct are that the doctor was not able to provide an appropriate level of clinical input because he was consistently rendering large numbers of services daily and working such long hours.

103               In Peverill v Backstrom [1994] 33 ALD 477 (on appeal: Peverill v Backstrom [1994] 127 ALR 197), this random sampling system did not exist and every case was looked at, making it exceptionally difficult for the Court to review.  Here there was sampling, but I cannot see how its criteria apply to a case of the servicing of too many people in a day.  A day cannot be a “class”: s 87(1).  In a volume case sampling cannot refer to any relevant criterion.  Thus it seems to me that the sampling rules do not greatly assist in the resolution of the particular allegations brought against Dr Tankey about the number of services rendered.  There are many cases in which a patient would come to see a practitioner where the time taken for a consultation would be very small, such as where a decision is made to send a patient straight to hospital by ambulance or where a patient has a simple non-recurring problem such as a headache or the ’flu or where only a prescription was needed.  Unless the Committee undertook to look at each situation separately, it would simply be unable to make a finding that Dr Tankey could not have given the appropriate level of clinical input generally.

104               These observations do not, however, apply to a judgment on adequacy and quality of service over the year in question based on the overall statistical facts.  Where fairness might demand that a practitioner not be too highly penalised on the basis of severely limited examples or statistics said to justify a finding arising merely from number of services, the servicing of an excessively high number of patients is not to be tolerated because of the logistical difficulty of investigating a doctor’s practice.  During the referral period in this case, there were 24,231 level B consultations such that proportionately there were only a small number of short consultations including those for work certificates and repeat prescriptions, for which Dr Tankey suggested he received many requests and which he said he often took home and wrote outside ordinary practice hours.  In my opinion, this fact alone justified the Committee’s findings.

105               As the Committee’s findings were principally concerned with the quality of service given in these consultations over the year in question, even if this ground of appeal were open notwithstanding that it purports to challenge the Committee’s actions rather than the Tribunal’s, I cannot hold that the use of the sampling procedure invalidated the findings of “inappropriate practice”.

Earlier counselling by the Commission

106              Dr Tankey submitted that the Tribunal misdirected itself in law when it held to be relevant to whether he engaged in “inappropriate practice” in 1994 that he was visited on three occasions in 1989, 1991 and 1992 by medical advisers from the Commission who cautioned him “that the way he was conducting his practice was causing concern”.  The Tribunal stated in its determination that it agreed with the Committee “that these surgery visits initiated by the Commission were relevant [in that they] show that Dr Tankey was made aware, on at least three occasions, that the way he was conducting his practice was causing concern.  The pattern did not change”.

107               I agree with the appellant’s submission that the three visits cannot be relevant to the issue of whether the appellant engaged in “inappropriate practice” during 1994.  Even if this evidence was not directed to proof of that allegation but to the state of mind of Dr Tankey following the visits, as a matter of law it is irrelevant to the rendering or initiation of services as prescribed in sections 80(1) and 82(1) of the Act.  Section 86 also prohibits the consideration of services rendered or initiated before September 1993.  In my opinion the only relevance of the three visits to this matter could be that if unsuccessful counselling had been undertaken in the past, the Determining Officer might decide that counselling not be a useful or appropriate component of the final determination.  As this function was not the Committee’s to undertake, the evidence ought not to have been received.

108               However, I do not believe that this error by itself invalidates the Tribunal’s determination.  The question is whether the use of evidence infected the findings and whether the preponderance of the findings about his practising procedures and conduct provide a sufficient accumulation of legal errors to do so.

The appellant’s personal capacities

109               The Tribunal found that even if all of the appellant’s assertions as to work capacities and skills were accepted, the number of services carried out and evidence of his work practices precluded the delivery of an acceptable standard of patient care.  The appellant therefore asserted in this appeal that the Tribunal gave improper weight to the number of services and their view of his practices, and no weight at all to factors such as his availability, his ability to work long hours, his organisational talents and his superior diagnostic skills.

110               In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1985-1986] 162 CLR 24 Mason J said at 41 that “it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power”.  However, that judgment went on to state:

I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance

111               Justice Davies in Yung at 453 that “[i]n 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…”.  In the present case, other factors would include the efficiency of the doctor and his special skills.  However, the Tribunal is an administrative body whose members are entitled to bring to bear their own knowledge and experiences.  I am unable to find that its allocation of more weight to the number of services and inadequacy of record-keeping and less to Dr Tankey’s particular skills and capacities evidences any error of law or principle.

Support from specialist colleagues and patients

112               The reasons for the Referral were in relation to the number of services rendered per day by Dr Tankey.  It also stated that “Dr Tankey’s referral letters lack adequate clinical information”.  To deal with that allegation, letters from eighteen specialist colleagues were presented (the letters).  The Committee commented:

Dr Tankey submitted letters of support from a number of specialist colleagues.  The Committee would not accept that those specialists are cognisant of all the facts of the referral and what was elucidated at the hearing regarding the mode of practice of Dr Tankey.  It would accept that the referrals to those consultants would have been medically appropriate.  However, with regard to the question posed by the HIC Referral, the Committee can give but little weight to such testimonials.

113               Even if, as was suggested during the proceedings in this Court, specialists generally pay little attention to referrals from GPs, the tone of the letters was generally positive as to the appellant’s practice.  On one view these letters were testimonials, on another they were direct evidence of the adequacy of Dr Tankey’s referral letters.  The test to be applied is that fixed by the standards of the body of GPs as revealed by the evidence.  The examination of the appellant’s practice according to standards set by GPs so established does not render inadmissible the comments made by his specialist colleagues, for at least two reasons, one, because these specialists may have previously been GPs themselves, and secondly, because they deal with GPs all the time.

114               As I read them, the quality of Dr Tankey’s referrals varied, some being singularly uninformative, while others had more information.  It cannot be said that referring doctors must inform specialists of every factor of a patient’s case.  It is also open to the specialists to ask the GP for more details or to ask the patients for additional information, including the medication they are taking, the results of the exercise being dependent on the different levels of competency of patients.

115               As to the patient surveys, the Committee stated:

Dr Tankey provided survey forms completed by his patients which demonstrated their satisfaction with his practice.  However, the evidence given by the three general practitioners was that patient surveys are not a strong indicator of what the profession would regard as acceptable medical practice.  The Committee would agree with that view.

116               The answers given to more than 100 patient questionnaires were an attempt by Dr Tankey to compile a general view of his patients of the service and quality of care provided to them at his practice.  Despite the opinion of the expert witnesses at the Committee’s hearing that patient surveys are not a reliable indication of the objective acceptability of a doctor’s practice, I am of the opinion that patient satisfaction, particularly in an increasingly litigious area, would certainly be some evidence of the type of service provided by a practitioner, even allowing for the high level of trust often placed in doctors by patients.  Furthermore, when one of the major allegations against a practitioner is that because he is seeing a vast number of patients, he could only be giving a few minutes is given to each, several patients’ responses that the doctor was not too curt or rushed, inattentive or incomplete may be of some relevance.  Out of a relatively large number of patients surveyed, it might be expected that at least a handful would have been dissatisfied with the doctor’s service, which was not the case.  Of course if some were dissatisfied, they may not have completed the questionnaire or their replies might simply not have been produced.  But these possibilities raise a question of weight, not relevance or admissibility.

117               The Tribunal found nothing in the Commission’s attitude in these respects to criticise.  In my view, the Committee’s handling of these two matters was inadequate to the point of causing legal error.  Like with similar errors earlier identified, it will be the cumulative effect on the fact-finding exercise that must determine whether the Tribunal’s refusal to review the Committee’s approach should be overturned.

Failure of Referral to specify the services concerned

118               The appellant submitted that section 87(1) was not complied with as the institutions serviced by Dr Tankey can only be identified from the attachments and not from the Referral itself.  In my view, the attachments are part of the Referral.  The submission is without merit.

Repayment of Medicare benefits

119               The final question of law raised by the appellant was whether the Tribunal’s determination that the appellant repay the entire amount of Medicare benefits paid to him during the referral period, or the entire determination, was void as it was based upon a misconstruction of section 106U(1)(c) or of the Committee’s report or findings.  Section 106U(1)(c) states:

A determination must contain one or more of the following directions:

…

(c) that the person under review repay to the Commonwealth an amount equivalent to any medicare benefit paid for inappropriate services (whether or not the medicare benefit was paid to the person), and that any medicare benefit that would otherwise be payable for those services cease to be payable.

120               Section 106U(5) defines “inappropriate service” as:

…a service in connection with which the person under review is stated in a Committee’s report under section 106L to have engaged in inappropriate practice

121               The Tribunal said that the Determining Officer had no discretion to direct that only a percentage of Medicare benefits be repaid.  It found that if there was such discretion, the Determining Officer erred in its exercise.  It held that since the Referral referred to all services, as did the Committee’s findings, benefits for all services were repayable.

122               The appellant submitted that the Committee was not entitled to make findings about all services, and that the Tribunal was obligated to look at the matter for itself regardless of what the Committee had done.  The Tribunal did not and could not have done what it did without a full examination of all the services which it did not undertake.  As a consequence, the appellant argued, it had seriously abrogated its statutory responsibilities.  Strangely, considering his own determination on the matter, Dr Adams submitted that the reason for the Tribunal’s determination that Dr Tankey repay all of his earnings for the referral period was its view of this case as extreme.

123               Section 106U, however, does not refer to extreme cases.  It provides the Determining Officer with a range of possible penalties.  It is clear from subsection (1)(c) that the legislature had in mind that a person should repay the amount received for every or any selection of the inappropriate services as defined.  Where every case was not examined but only one day’s sampling, it is difficult to justify a determination that every service rendered in the whole year was inappropriate.  117 inappropriate services rendered in a day out of the 27,048 services make it difficult to conclude that the remaining 26,931 services were all “inappropriate”.  It would have been more understandable were the repayment of Medicare benefits calculated, for example, on the basis of reducing what was received to the average amount received by all other general practitioners.  Dr Adams’ original assessment was presumably based upon some such concept or his personal judgment of what seemed fair in the circumstances.  He had a right and an obligation to use personal judgment.

The Tribunal’s reasons

124               In a facsimile sent after the hearing, the appellant sought leave to add a further issue of law to his notice of appeal that “the Tribunal’s determination is void by reason of a failure to adequately explain its reasons.”

125               In Yung at first instance, Justice Davies said:

The Commission’s reference, the committee’s report and the determination of the determining officer are all written documents and should be supported by reasons.  In this context, it would be unacceptable for the tribunal not to give a reasoned decision…s 108(3) of the Act provides that the President of the tribunal must be a person who holds or has held judicial office.  This suggests that the tribunal, like a court, should give reasons for its decision…under        s 124A of the Act, an appeal lies to this court on a question of law from any decision of a Professional Services Review Tribunal.  Where such an appeal lies, it is incumbent on the tribunal to give sufficient reasons to enable an aggrieved party to determine whether or not to appeal to the court and to enable the court to decide whether or not the decision was made in accordance with the law.  Accordingly, I am satisfied that the Act implied a duty on the tribunal when giving its decision to state its findings, to explain the reasons for its finding and for its decision and to refer to the material on which the findings were based.

126               There was no contrary view expressed by the Full Court which by majority overturned his Honour’s judgment in other respects.  The reasons of the Tribunal in Dr Tankey’s case absorb 11 typewritten pages and there is no point in my setting them out in full here.  My reading of them suggests that the reasons for its determination were adequately if not comprehensively exposed.

CONCLUSION

127               In Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598, the Full Court stated at 601, in relation to the Administrative Appeals Tribunal, that:

An appellant who attacks a conclusion of the Tribunalbecause of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based.

128               In my view, the available evidence permitted the Tribunal to endorse each of the Committee’s findings of fact despite the facts that:

·        its admission or use of the evidence of the three visits by Commission officers or advisers many years before the year under review manifested an error of law, and

·        its treatment of the supporting letters from eighteen specialists and around 100 patients was erroneous in that they were entitled to be weighed in the appellant’s favour against the unfavourable evidence.

It is my opinion that these errors do not vitiate the Tribunal’s determination because of the weight of evidence that his conduct of his practice was inappropriate.  Even if these matters had been taken fully into account, the Tribunal would have been entitled to uphold the Committee’s findings.

129               I also believe that on the evidence presented, the Tribunal was entitled to uphold all the respondent’s disciplinary directions except its substantial increase of the restitution he ordered.  On this matter, the Tribunal misconstrued section 106U and what the evidence showed.  It is only benefits paid for “inappropriate services” that may be ordered to be repaid, that is, services which have been found to constitute “inappropriate practice”.  There was no finding that all the services rendered in 1994 were inappropriate.  The legislative scheme would be unworkable if every rendered service had to be separately examined for inadequacy.  Indeed, such an undertaking would or might even preclude taking the whole of a doctor’s practices and conduct into account in determining whether “inappropriate practice” has been established.  Hence on the issue of restitution and disciplinary action generally, there is required to be applied to all sampling, statistics and overviews commonsense and judgment, the evidence about the doctor’s general practices, including the doctor’s own evidence, and the experience of GPs in general.  As I see the position, Dr Adams’ final determination drew the balance in a place that was justified and is justifiable on the material presented.  He made an educated estimate of what appeared to follow fairly from the Committee’s and his own conclusions.  The Tribunal’s conclusion that he erred in law in doing so was in my opinion not justified by any provision of the statutory scheme.

130               The Tribunal’s determination that Dr Tankey repay to the Commonwealth $580,576.00 will therefore be set aside and the respondent’s determination in that respect of 16 August 1996 restored.  In other respects, the appeal is dismissed.  The appellant will pay two thirds of the respondent’s costs.

Associate:

Dated:              31 May 1999