FEDERAL COURT OF AUSTRALIA
HEALTH - application to set aside decision of the Chairperson of the Professional Services Review Committee (“the Committee”) to notify the Director Professional Services Review (“the Director”) of the applicant’s failure to comply with the requirements of a written notice pursuant to par 104(2)(b) of the Health Insurance Act 1973 (Cth) “to appear at the hearing … and give evidence to the Committee” – application to set aside subsequent decision by Director made pursuant to s 105(3) to disqualify the applicant and notify the Health Insurance Commission of the disqualification – hearing to determine whether services rendered by applicant during a referral period constituted “inappropriate practice” for the purposes of the Health Insurance Act 1973 (Cth) – whether the giving of a deliberate non‑responsive answer to questions put by the Committee constituted a failure to comply with the requirement of the notice “to give evidence”.
JUDICIAL REVIEW - Administrative Decisions (Judicial Review) Act 1977 (Cth) – review of decisions of the Chairperson of the Professional Services Review Committee and Director of Professional Services Review – whether there was no evidence or other material to justify the making of the decisions – whether the decision were otherwise contrary to law.
WORDS AND PHRASES – “fails”
- failure to “answer a question”
- failure to “give evidence”
Health Insurance Act 1973 (Cth): Pt VAA, s 102, s 104, s 105, s 105E, s 106EA
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Health Legislation (Professional Services Review) Amendment Act 1994 (Cth)
Ingram v Ingram (1938) 38 SR (NSW) 407 - applied
CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 - applied
WILVENE LESLEY EVYLINE HILL v ALAN JOHN HOLMES & ORS
V257 of 1999
GOLDBERG J
8 JUNE 1999
MELBOURNE
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
BETWEEN: |
WILVENE LESLEY EVYLINE HILL Applicant
|
|
AND: |
ALAN JOHN HOLMES First Respondent
HEALTH INSURANCE COMMISSION Second Respondent
LYNETTE EDWARDS Third Respondent
|
|
DATE OF ORDER: |
|
|
WHERE MADE: |
THE COURT ORDERS THAT:
1. The decision of the third respondent to notify the first respondent of the failure of the applicant to comply with the requirements of the notice under par 104(2)(b) of the Health Insurance Act 1973 (Cth) (“the Act”) addressed to the applicant and dated 16 April 1999 (“the said notice”) is set aside.
2. The notification by the third respondent to the first respondent dated 19 May 1999 that the applicant had failed to comply with the requirements of the said notice is set aside.
3. The decision of the first respondent on 19 May 1999 to fully disqualify the applicant and give the second respondent written notice of such disqualification pursuant to subs 105(3) of the Act is set aside.
4. The full disqualification of the applicant by the first respondent on 19 May 1999 pursuant to subs 105(3) of the Act is set aside.
5. The first respondent pay the applicant’s costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
BETWEEN: |
Applicant
|
|
AND: |
First Respondent
HEALTH INSURANCE COMMISSION Second Respondent
LYNETTE EDWARDS Third Respondent
|
|
JUDGE: |
|
|
DATE: |
|
|
PLACE: |
REASONS FOR JUDGMENT
Introduction
1 By letter dated 19 May 1999 the first respondent, the Director of Professional Services Review (“the Director”) appointed pursuant to the provisions of Pt VAA of the Health Insurance Act 1973 (Cth) (“the Act”) notified the applicant that he had fully disqualified the applicant in accordance with par 105(3)(a) of the Act and had advised the second respondent, the Health Insurance Commission (“the Commission”) accordingly. The letter said that the disqualification would be effective from midnight on 19 May 1999. The effect of the disqualification is that patients of the applicant, a medical practitioner, are unable to obtain Medicare benefits in respect of professional medical services provided to them by the applicant after 19 May 1999.
2 The applicant filed an application on 20 May 1999 seeking an order of review of the decision of the Director to disqualify fully the applicant pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). The grounds specified were that:
(a) there was no evidence or other material to justify the making of the decision;
(b) the decision was otherwise contrary to law.
By notice of motion filed on 20 May 1999 the applicant sought interlocutory relief that the notice constituted by the letter be stayed or suspended pending the hearing of the application and an order directing the Commission to refrain from implementing or enforcing the disqualification pending the hearing of the application.
3 In the course of the hearing of the motion it became apparent that it was appropriate that the Chairperson of the Professional Services Review Committee No 102 set up by the Director to consider whether the applicant had engaged in inappropriate practice should be joined as a respondent and leave was granted to the applicant to join the Chairperson, Dr Lynette Edwards. The parties also agreed that I should treat the hearing of the motion as the trial of the proceeding. The relief sought against the third respondent Dr Edwards (“the Chairperson”) was the setting aside of her decision to notify the first respondent that the applicant had failed to comply with the requirements of a notice given to her to appear at a hearing of the Committee and give evidence to the Committee. The grounds on which the applicant sought to set aside that decision were that:
(a) there was no evidence or other material to justify the making of the decision;
(b) the decision was otherwise contrary to law.
The Commission and the Chairperson did not enter appearances but informed the Court that they would abide the decision of the Court and submit to any order made by the Court.
Background
4 The applicant is a medical practitioner in general practice specialising in the treatment of allergies. The effect of the disqualification is that although the applicant is not precluded from practising as a medical practitioner Medicare benefits cannot be paid in respect of professional medical services rendered by the applicant after 19 May 1999. Paragraph 19B(2)(a)(ia) of the Act provides that a Medicare benefit payable under Pt II of the Act is not payable in respect of a professional service if at the time when the service was rendered the person who rendered the service was fully disqualified under s 105 of the Act.
5 Part VAA of the Act headed “The Professional Services Review Scheme” creates a scheme under which a person’s conduct can be examined to ascertain whether the person has engaged in inappropriate practice. The concept of “inappropriate practice” is defined in s 82 of the Act and, in the case of a general practitioner, it provides that the practitioner engages in inappropriate practice if the practitioner’s conduct in connection with rendering or initiating services is such that a Professional Services Review Committee could reasonably conclude that if the practitioner rendered or initiated the referred services as a general practitioner the conduct would be unacceptable to the general body of general practitioners. The expression “service” is defined in s 81 as meaning:
“(a) a service for which, at the time it was rendered or initiated, medicare benefit was payable; or
(b) a prescribing or dispensing of a pharmaceutical benefit by a medical practitioner or a dental practitioner.”
By virtue of s 86 of the Act the Commission may refer to the Director of Professional Services Review the conduct of a person relating to whether the person has engaged in inappropriate practice in connection with the rendering or initiation of services.
6 On or about 14 August 1997 the Commission referred the applicant’s conduct to the Director. On 14 August 1997 the delegate of the Commission sent a copy of the referral to the applicant and in accordance with subs 88(2) of the Act notified the applicant that she was invited to make written submissions to the Director within fourteen days stating why he should dismiss the referral without setting up a Professional Services Review Committee under s 93 of the Act. The conduct of the applicant, the subject of the referral, appears to be the number of services provided by the applicant to her patients and the number of times allergy or skin sensitivity testing procedures were prescribed. The referral noted that the applicant provided more service to her patients than 97% of all other medical practitioners in Australia during the referral period which was 1 January 1996 to 31 December 1996.
7 On 28 August 1997 the applicant made a written submission to the Director as to why he should dismiss the referral without setting up a committee. Thereafter nothing happened for approximately eighteen months. Subsection 89(1) of the Act provides that within twenty‑eight days after receiving the referral the Director must dismiss it or set up a committee to consider whether the practitioner has engaged in inappropriate practice. The Director did not take either of these courses of action within twenty‑eight days after receiving the referral.
8 Section 93 of the Act provides:
“The Director must, by instrument in writing, set up a Committee to consider whether the person under review has engaged in inappropriate practice unless:
(a) the Director is satisfied that there are insufficient grounds on which a Committee could reasonably find that the person under review has engaged in inappropriate practice in connection with the referred services; or
(b) the Director has disqualified the person under review under section 92.”
9 Section 95 provides for the constitution of committees and the appointment of a Chairperson.
10 Some eighteen months later, on 12 February 1999, the Director set up Professional Services Review Committee No 102 (“the Committee”) in accordance with s 93 and s 95 of the Act to consider whether the applicant had engaged in inappropriate practice in relation to the services outlined in the referral from the Commission on 14 August 1997. The Director appointed the third respondent as Chairperson of the Committee. The setting up of the Committee on this date was not invalid notwithstanding that it was not effected within the time prescribed by subs 89(1). Subsection 89(2) of the Act provides that:
“The Director’s decision on the referral is not rendered invalid merely because it is not made within the 28 day period.”
In Tang v Holmes (1998) 51 ALD 121 Sundberg J analysed the relevant provisions relating to the setting up of a committee and concluded that the setting up of a committee after the twenty‑eight day period provided for in subs 89(1) was effective and not invalid.
11 On 3 March 1999 the Committee gave written notice to the applicant that it proposed to hold a hearing into the matter whether the applicant had engaged in inappropriate practice in connection with rendering particular services on 8 April 1999. The notice required the applicant to produce to the Committee secretary by 5.00 pm on 15 March 1999 complete and original documents for specified patients to whom the applicant had rendered services and all practice appointment books, day books and attendance registers for the applicant for the referral period. The applicant was also required by the notice “to appear at the hearing on Thursday 8 April 1999, and give … evidence to the Committee”. The notice set out the following particulars of the matter to which the hearing related:
“This hearing concerns your conduct in relation to whether you have engaged in inappropriate practice as defined by the Health Insurance Act 1973 in connection with all services rendered by you during the Referral Period, from your practice locations in the State of Victoria.
The level of your clinical input and the clinical relevance of referred services is of particular concern to the Committee.”
On 23 March 1999 the Committee sent the applicant an amended notice of hearing which made the following addition to the particulars of the matter to which the hearing related:
“At this stage, the Committee is principally concerned with services rendered by you under MBS items 12000 and 12003 and with services provided to the top 5 families contained in the multiple servicing report in the HIC Referral.
12 The hearing commenced on 8 April 1999. The applicant had not produced the documents referred to in the notice of hearing to the secretary of the Committee and at the hearing the applicant was asked whether she had the documents. The applicant informed the Committee that she did not have the documents, that she did not own the notes relating to the patients and that she had tried to get access to them. The applicant said that the clinic in which she worked during the referral period was owned by a company called AMS Health Services Pty Ltd which owned the medical records and that they were not in her power or possession or custody and that she was not able to bring them. The hearing was adjourned to a date to be fixed.
13 On 16 April 1999 the Committee gave the applicant notice pursuant to par 104(2)(b) of the Act that there would be a further hearing on 18 and 19 May 1999 and the applicant was required by the notice to “Appear at the hearing … and give evidence to the Committee” and produce certain specified documents.
14 The applicant had written to the director of AMS Health Services Pty Ltd on 10 March 1999 requesting the medical histories of the patients referred to in the notice of hearing so that they could be produced to the Committee. By letter dated 12 March 1999 that request was denied. The letter was signed by Alicia Clifford as director, Alicia Clifford being the daughter of the applicant. On 13 April 1999 the Committee gave a written notice to Alicia Clifford as director and secretary of AMS Health Services Pty Ltd pursuant to s 105A of the Act requiring her to produce patient records by 22 April 1999. It appears that the notice could not be served personally on Alicia Clifford and the documents were not produced.
15 The adjourned hearing resumed on 18 May 1999. The applicant appeared accompanied by her husband. The applicant made an affirmation to tell the truth and the members of the Committee commenced questioning the applicant. The transcript of the hearing from this point until the hearing was adjourned occupies approximately forty‑eight pages. I do not propose to set out all the questions directed by the Committee or the applicant’s responses to the Committee’s questions. However, it is fair to say that on a number of occasions the applicant did not answer directly or responsively the questions which were put to her. The Committee asked the applicant whether she had brought the documents the Committee had requested at the earlier hearing. The applicant had not brought the documents as she said they were not in her possession, power or custody. The Committee then asked the applicant questions about a patient whom the Committee identified as the applicant’s most frequently serviced patient. According to the Committee this patient had received 490 services from the applicant in one year. The Committee sought by questions to ascertain the applicant’s diagnosis for the patient and what the patient’s medical condition was during the referral period. The applicant did not answer these questions in a manner which the Committee found satisfactory. For example the following sequence occurred (transcript 12-13):
DR EDWARDS: Dr Hill, what we are asking you is: a woman you have seen 1½ times every day for a year, we are asking what her diagnosis is? What is wrong with this woman?
DR HILL: She is a lady who has many conditions.
DR EDWARDS: Which are?
DR HILL: Again, it is not possible to answer that for any particular time, Dr Edwards.
DR EDWARDS: I am not asking for any particular time, I am asking you what is wrong with this woman? What are her major diagnosis? I am not asking about any particular day.
DR HILL: You are asking for the whole of 1996, are you not?
DR EDWARDS: We have said that. What was wrong with her during 1996? During the referral period, what was wrong with her?
DR HILL: [The patient] has specifically asked me not to divulge any of her medical information.
DR EDWARDS: I think you are obliged to, Dr Hill. That is the law.
DR HILL: Then, Dr Edwards, to the best of my ability to recall, in the absence of the medical history, I am unable to give you accurately the required information and to give inaccurate information puts me in great jeopardy. I have taken an affirmation that I will tell the truth. Now, if I am unable to tell exactly and truthfully, I must not tell.
DR EDWARDS: Dr Hill, I find it incomprehensible that a woman you saw 1½ times every day for a year, you are unable to tell me what her major diagnosis are. I find that incomprehensible and unacceptable, I am sorry.
DR HILL: I can only tell you, Dr Edwards, that her condition was very variable. I am not able to specify what was wrong on any particular time or even over a period of a year.
DR EDWARDS: I cannot believe that, I am afraid, and I think you are being obstructive to this committee.
DR HILL: No, I am not being obstructive. I have to take into account that I am under affirmation. I have to take into account what the legislation says is to happen to me if I give wrong or misleading information and in the absence of the notes, I am sorry, I am unable to give you accurate information which is what you are asking for. So I am caught.
DR EDWARDS: Are you telling me that you do not know what is wrong with this woman?
DR HILL: I am telling you that she has multiple problems and I am telling you, Dr Edwards, that I am unable to accurately when I am under affirmation give those answers.
DR EDWARDS: Well, I am sorry, I find that unacceptable, Dr Hill, and I cannot believe you.”
At page 26 the following exchange occurred:
DR BANKS: Dr Hill, I think it is reasonable to ask what general medical conditions this woman does suffer from? It is a very different question from asking somebody who they saw on December 12th, this is a person who has been seen 490 times in a year. When one sees a patient fairly frequently, far far fewer times than 490 times a year most doctors would have some recall of the condition or conditions this patient suffers?
DR HILL: All I can say, Dr Banks, is that over a number of years the conditions have varied. If I give you an answer I cannot be sure that it applies to 1996 and I am not prepared to give an incorrect answer because I am under that affirmation which the committee insisted I be under.”
At page 29 of the transcript the Chairperson is recorded as saying:
“Well, it is clear to me, Dr Hill, that you are obstructing this process and you are not answering our questions either in general or specific terms. Let us go on to the next patient …”
16 In general terms the applicant was unwilling to answer directly questions as to the medical condition of the patient who had been the subject of 490 services by the applicant in the referral year. The second patient about whom the applicant was questioned had received 254 services from the applicant during the referral period but the applicant was unable to remember anything about his clinical condition.
17 After the applicant was questioned about the second patient the Chairperson said (Transcript 37):
“I believe you have refused to answer questions and I believe that you are not being truthful when you say you cannot remember any clinical details about patients that you have seen on a daily basis and sometimes more frequently than a daily basis; I just cannot believe that.”
Shortly thereafter the Chairperson said (Transcript 40):
“I believe you are obstructing this committee and you are not answering our questions and you are not being cooperative and I think the only way possibly to get around this is to summon your patients and to get them to appear and to ask them, under oath, questions about those consultations and I think that is something that we may well consider doing.
I would also like to remind you that under section 105 of the Act I have got the power to notify the Director of Professional Services Review of these events today and that you have been uncooperative and refused to answer our questions, in my opinion, and if I do that he must act upon that and must fully disqualify you from that point forth from any Medicare repayments to any of your patients.”
18 Towards the end of the hearing the Chairperson said (Transcript 50):
“Dr Hill, it is our opinion as a committee that you have obstructed the course of this committee hearing by refusing to answer questions and by telling us that you have not remembered even the broadest details of your patients medical histories, which we find impossible to believe. You have refused to give us the information that we have wanted about cases and made it impossible to discuss them with you. You have also refused to give general information about your practice. I think going into an explanation of the background of your practice is not going to be helpful at this stage.”
Thereafter the Chairperson also said (Transcript 53):
“You have told us that you have no memory of things for which clearly we feel as a GP or a medical practitioner you should have a memory for, and you have refused to co‑operate.”
The Chairperson concluded (Transcript 54):
“… I feel compelled to notify the Director of the Professional Services Review of the fact that you have not co‑operated with this committee and I am going to leave the matter in his hands. So I would like to call this committee meeting to a close.”
The hearing was adjourned indefinitely shortly afterwards.
19 On the following day, 19 May 1999, the Chairperson wrote to the Director with reference to the hearing in relation to the applicant. The letter commenced:
“As Chairperson of Professional Services Review Committee No. 102 and, pursuant to section 105(1)(b) of the Health Insurance Act 1973 (‘Act’), I am required to notify you that, subsequent to the Notice issued on 16 April 1999 under section 104(2)(b), Dr Hill has, in the Committee’s opinion, failed to comply with the requirements of this Notice.”
The letter set out the events which had occurred since the Committee had been constituted. The letter then continued:
The Committee found itself frustrated in its ability to carry on the inquiry. Despite repeatedly attempting to question Dr Hill about the most general issues Dr Hill refused to give any meaningful answers to questions about these patients’ clinical conditions. The Committee formed the view, based on its own experience in general practice, that if Dr Hill had seen these patients on the numbers of occasions indicated in the HIC referral it was not credible that she was unable to recall any details of their clinical conditions without reference to the medical records. The Committee believed Dr Hill was deliberately avoiding giving any evidence which would assist the Committee in determining whether or not she had engaged in inappropriate practice in connection with the referred services.
…
Because Dr Hill would not answer questions about any patient seen by her in 1996, the Committee concluded that she was not complying with the requirements of the s.104(2)(b) notice, namely that she appear and give evidence to the Committee. The Committee told Dr Hill that it would advise the Director of Professional Services Review of her failure to comply with the notice and indicated what the consequences of the notification would be. The Committee than adjourned the hearing indefinitely.”
The letter concluded with a notification in the following terms:
“As required by s.105(1)(b) of the Act, I notify you of the failure of Dr Hill to comply with the notice under s.104(2)(b). The matter is hereby referred to you for action under s.105(3) of the Act.”
Relevant provisions of the Health Insurance Act
20 The current provisions of Pt VAA of the Act were introduced into the Act by the Health Legislation (Professional Services Review) Amendment Act 1994 (Cth). In the Second Reading Speech it was stated that the bill gave effect to an undertaking to introduce new measures to combat over servicing in the Medicare program including pharmaceutical benefits. The Second Reading Speech set out the changes which had been made to the legislation which included changes to the review procedure. In the course of setting out these changes the following statement was made:
“A further important change lies in the penalty that will result from the refusal of a practitioner to attend a hearing or to produce documents when required to appear before a professional services review committee. If a practitioner refuses twice to comply with the requirements of a written notice of hearing, that practitioner will be fully disqualified from Medicare until such time as he or she agrees to comply. The inclusion of this provision reflects a view shared by the government and the AMA that a practitioner whose conduct in the rendering or initiating of publicly funded services is open to question should be required to participate in a professionally oriented process of review.”
It was also stated that:
“The bill gives the profession substantial autonomy in examining and reaching findings on inappropriate practices. At the same time, proper care has been taken to ensure that the practitioner under review receives natural justice.”
21 Section 102 provides:
“Notice of hearings
(1) If the Committee proposes to hold a hearing, it must give to the person under review written notice of the time and place proposed for the hearing.
(2) The notice must be given at least 14 days before the day of the proposed hearing.
(3) The notice must give particulars of the matter to which the hearing relates.”
22 Section 104 provides:
“Requiring persons under review to give evidence etc.
(1) The notice under section 102 may require the person under review to do either or both of the following:
(a) appear at the hearing and give evidence to the Committee;
(b) appear at the hearing and produce such documents as are referred to in the notice.
(2) If the person under review fails to comply with any such requirements of the notice, the Committee may:
(a) fix a day for another hearing, at least 28 days after the day specified in the notice under section 102, at which the evidence of the person under review is to be taken and/or the documents referred to in the notice are to be produced; and
(b) give the person under review written notice of the time and place proposed for the other hearing.
(3) The notice may contain some or all of the requirements included under subsection (1) in the notice under section 102.
(4) The person under review must not at the hearing knowingly:
(a) give an answer to a question that is false or misleading in material particular; or
(b) produce a document that contains a statement that is false or misleading in a material particular, without identifying the respects in which he or she knows it to be false or misleading.
Penalty: 20 penalty units.
(4A) If the person under review is required by the notice under subsection (2) to produce such documents as are referred to in the notice, the person must appear at the hearing and produce those documents.
Penalty: 20 penalty units.
(5) Subject to subsection (6), the reference in subsection (2) to failing to comply with requirements of the notice under section 102 includes a reference to failing to answer a question that the person under review is asked by the Committee in the course of giving evidence at the hearing.
(6) Subsection (5) does not apply in relation to a question if:
(a) the person under review refuses to answer the question on the ground that the answer to the question might tend to incriminate him or her; and
(b) the Chairperson believes that the answer might tend to do so.”
23 Section 105 provides:
“Consequences of not complying with requirements
(1) If the person under review fails to comply with the requirements of the notice under paragraph 104(2)(b):
(a) the Committee may, despite section 103, proceed with a hearing in the absence of the person under review; and
(b) if the person under review is a practitioner – the Chairperson must notify the Director of the failure to comply.
(2) Subsection (1) does not apply if:
(a) before the other hearing referred to in subsection 104(2) takes place, the person notifies the Committee that he or she has a medical condition preventing him or her from complying with the requirements; and
(b) the person has complied with any reasonable requirements of the Committee that he or she undergo medical examination to establish the existence and extent of the medical condition; and
(c) the results of such medical examination indicate that he or she has a medical condition preventing him or her from complying with the requirements.
(3) As soon as practicable after receiving the notice under paragraph (1)(b), the Director must:
(a) fully disqualify the person under review; and
(b) give the Commission written notice of the disqualification.
(4) If the person under review subsequently complies with the requirements:
(a) paragraph (1)(a) ceases to apply; and
(b) the Chairperson must inform the Director of the compliance as soon as practicable.
(5) As soon as practicable after being so informed, the Director must:
(a) revoke the disqualification; and
(b) give the Commission written notice of the revocation.
(6) Subject to subsection (7), the reference in subsection (1) to failing to comply with the requirements of the notice under paragraph 104(2)(b) includes a reference to failing to answer a question that the person under review is asked by the Committee in the course of giving evidence at the hearing.
(7) Subsection (6) does not apply in relation to a question if:
(a) the person under review refuses to answer the question on the ground that the answer to the question might tend to incriminate him or her; and
(b) the Chairperson believes that the answer might tend to do so.”
24 Section 106A provides that evidence at a hearing may be taken on oath or affirmation and s 106E provides:
“(1) A person appearing as a witness at a hearing (whether summoned to appear or not) must not, without reasonable excuse:
(a) refuse or fail to be sworn or to make an affirmation; or
(b) refuse or fail to answer a question that he or she is required by a Committee member to answer; or
(c) refuse or fail to produce a document that he or she is required under this Act to produce.
…
(7) This section does not apply to the person under review.”
Section 106EA provides:
“Contempt of Committee
A person must not:
(a) obstruct or hinder the Committee or a Committee member in the performance of the functions of the Committee; or
(b) disrupt a hearing before the Committee.
Penalty: 20 penalty units.”
The submissions
25 The applicant submitted that the notices given to the applicant required her to give evidence and that she had in fact given evidence. The applicant submitted that the requirement of the notice in accordance with par 104(2)(b) was to “appear at the hearing and give evidence” to the Committee, that it was not to the point that the answers may not have been meaningful and that the fact that the applicant had answered questions meant that the basis for the decision to disqualify the applicant could not stand.
26 The applicant submitted that a deliberate non‑responsive answer is not a failure to give evidence to the Committee or a failure to answer a question for the purposes of s 105(6). It may be, said the applicant, that such a circumstance may be an obstruction or hindrance of the Committee giving rise to a contravention of s 106EA of the Act which prohibits a person from obstructing or hindering the Committee in the performance of its functions. However it was said that there was a fundamental difference between failing to attend and give evidence (par 104(1)(a) and subs 105(1)), failing to answer a question asked by the Committee (subs 104(6) and subs 105(6)) and refusing to answer a question on the ground that the answer might tend to incriminate (par 105(7)(a)) on the one hand and answering a question in an obstructive and evasive manner or giving a deliberate non‑responsive answer on the other hand. The applicant did not accept that such was the situation in the present case.
27 The Director submitted that in substance the applicant had failed to give evidence because her evidence was not responsive to the questions put to her. It was submitted that there was no attempt by the applicant to engage with the questions put to her and that her evasive answers should be considered to be a failure to answer the questions. It was submitted that the applicant was playing with the Committee and constantly evading the questions put to her and that one could not look at any particular question in isolation. It was said that the Chairperson’s finding that the applicant had failed to comply with the requirements of the notice was open on the evidence before the Committee and that “failing to answer a question” for the purposes of s 105(6) meant failing to give a responsive answer. Put shortly, a non‑responsive or non‑meaningful answer was a failure to answer the question within s 105(6).
Reasoning
28 In order for the applicant to succeed in setting aside the full disqualification it is necessary for the applicant to set aside the decision of the Chairperson of the Committee to notify the Director of the applicant’s failure to comply with the requirements of the notice under par 104(2)(b). The attack on the Director’s decision to disqualify fully the applicant is based on the grounds that there was no evidence or other material to justify the making of the decision which was contrary to law. However, the Director was bound under par 105(3)(a) to disqualify fully the applicant after receiving a notice under par 105(1)(b). There is no doubt that the Director received such a notice and, therefore, it cannot be said that there was no evidence or other material to justify the Director’s decision. The letter of the Chairperson constitutes such evidence and having been notified that the applicant had failed to comply with the requirements of the notice it was not contrary to s 105 for the Director to disqualify fully the applicant.
29 Whether the decision of the Chairperson to give the notice can be set aside is more complex. It is apparent from the Chairperson’s letter that she and the Committee had formed the view that the applicant had refused to give any meaningful answers to questions put to her, had obstructed the Committee in the manner in which she had responded to the questions put to her and had not co‑operated with the Committee. If the proper construction of subs 105(1) and par 104(1)(a) is that the requirement in the notice to appear at the hearing and give evidence to the Committee was a requirement not simply to turn up at the hearing, be sworn or make an affirmation and respond to questions put to her but to give responsive answers to the questions put to her then it cannot be said that there was no evidence or other material to justify the Chairperson’s decision. (I refer to par 104(1)(a) as subs 104(3) provides that a notice given under par 104(2)(b) may contain the requirements included under subs 104(1) in the first notice).
30 I am satisfied that the responses by the applicant to the questions put to her by the Committee (to some of which I have referred in par 15 of these reasons) were such that it was open to the members of the Committee to conclude that the applicant had not given responsive or meaningful answers to the questions put to her and was deliberately avoiding giving any evidence which would assist the Committee reaching a determination. On the basis of this construction of subs 105(1) and par 104(1)(a), subs 105(1) entitled the Chairperson to give the notification to the Director.
31 However, if the proper construction of the requirement in par 104(1)(a) is that the person under review is required to turn up at the hearing, be sworn or make an affirmation and then answer questions put to her in the sense of articulating answers without regard being given to the content or responsiveness of the answers then there was no evidence or other material to justify the Chairperson’s decision to give the notification to the Director. Each question put to the applicant by members of the Committee was responded to by the applicant in the sense that she articulated and uttered an answer albeit an answer the Committee found, with some justification, unsatisfactory. In such circumstances the Chairperson’s decision was contrary to law because not only did the applicant turn up at the hearing and make an affirmation but she also gave answers to each question put to her in the sense that she articulated and uttered a response to each question put to her.
32 Although the members of the Committee took the view (which was open to them) that the applicant had not given responsive or meaningful answers to their questions and that such circumstances constituted a refusal to answer questions and a failure to “give evidence” for the purposes of par 104(1)(a) and subs 104(2) it is still necessary to determine whether such circumstances, as a matter of statutory construction, constitute a failure to “give evidence” for the purposes of par 104(1)(a) and subs 104(2) or a failure to “answer a question” for the purposes of subs 105(5).
33 Subdivision B of Div 4 of Pt VAA of the Act which contains provisions relating to proceedings of Professional Services Review Committees recognises that in certain circumstances there will be a failure to give evidence – par 104(1)(a) and subs 104(2), a failure to answer a question – subs 104(5) and subs 105(6), a refusal or a failure to answer a question – par 106E(1)(b) and that there may be an obstruction, hindrance or disruption of the committee – s 106EA. This different use of language in each section makes it all the more important to consider the context in which the failure to give evidence and the failure to answer a question will arise.
34 The word “fails” may have a number of meanings depending upon its context. It can mean simply an omission or the fact that something does not happen, that is to say mere non‑fulfilment; it can also mean that something has not happened because of an element of culpability or responsibility. In Ingram v Ingram (1938) 38 SR (NSW) 407, Jordan CJ pointed out that the word “fail” may have at least three possible meanings. His Honour said at 410:
“… where it is provided by statute that certain consequences shall follow if a person fails to do something which is directed to be done, the meaning of the word ‘fail’ depends upon the context in which it is found. In some contexts it may mean simply the omission to do the thing in question, irrespectively of any reason which may have existed for his not doing it. … In other cases it may mean an omission to do the thing by reason of some carelessness or delinquency on his part, but not omission caused by impossibility for which the person in question is not responsible … In other cases, it may mean omission to do the thing, but so that omission caused by impossibility arising from some causes is included and from others is excluded …”
35 As Kirby P (who dissented on the point of construction before the Court) pointed out in CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 at 609:
“There are doubtless several other combinations of circumstances which do or do not attract the verb to fail …
Scrutiny of judicial observations on the word ‘fails’ (or relevant variants of the verb ‘to fail’) discloses, as one would expect, differing meanings attributed to the word in differing contexts. In some contexts, the courts have been at pains to confine the word to circumstances evincing default or moral blame on the part of the person alleged to have failed …
On the other hand, an equally lengthy catalogue of cases can be assembled to illustrate the applicability of the words to circumstance where there is absolutely no suggestion of delinquency on the part of the person alleged to have failed, but simply an omission on that person’s part to do something required or expected.”
Although these observations were made in the context of construing an agreement between two parties they are equally applicable to a context of construing a statutory provision. There are numerous cases where the expression “fails” or “failure” has been construed but those cases are of little assistance because the relevant statutory provisions and contexts are quite different from the present circumstances. The Director relied on R v Hulme (1870) LR 5 QB 377 at 385 where the relevant statute entitled a witness called before an enquiry into electoral corruption to a certificate protecting the witness from prosecution where the “witness shall answer every question relating to the matter aforesaid.” The Court held that this provision obliged the witness to give true answers. However that statutory context is sufficiently far removed from the present context to be of little assistance in the present circumstances.
36 The relevant expression to be construed is not simply “fails”, but “fails to comply with the requirements of the notice under paragraph 104(2)(b)”. This contemplates two requirements in respect of which there may be a failure:
(a) to appear at the hearing and give evidence to the Committee;
(b) to appear at the hearing and produce documents referred to in the notice.
The failure in respect of the production of documents is easier to identify – the documents are produced or they are not produced. There are no intermediate shades of meaning. The requirement in par 104(1)(b) is therefore a requirement to appear at the hearing and physically produce the documents. No consideration needs to be given to the nature or content of the documents. They only have to answer the description set out in the notice.
37 The similarity in language in par (a) and par (b) in subs 104(1) suggests that what is contemplated is that the person under review is to turn up at the hearing (that is, appear) and carry out the acts required by the notice, that is to say go through the act of producing the documents or go through the act of being questioned and articulating answers to the questions.
38 The first passage in the Second Reading Speech to which I have referred in par 20 of these reasons is more consistent with the construction of the critical provisions in s 104 and s 105 of the Act that the reference to a failure to give evidence and a failure to answer a question is a reference to not giving any evidence or any answer at all rather than a reference to a circumstance which includes the giving of a non‑responsive or non‑meaningful answer.
39 However s 105(6) makes it clear that a failure to comply with the requirements of a notice under s 104(2)(b) can occur after the person under review has entered upon the procedure of answering questions because it includes within such a failure a failure to answer a question asked in the course of giving evidence.
40 The expression fails to “give evidence” in par 104(1)(a) (brought about through subs 105(1) and subs 104(3)) and the expression “failing to answer a question” in s 104(5) and s 105(6) contemplate a situation where there is no response at all from the person under review, either because the person has not appeared at the hearing and been sworn or made an affirmation or has not given any answer to a particular question where the person under review has turned up at the hearing and has been questioned.
41 In my opinion, the expression “appear at the hearing and give evidence to the Committee” in par 104(1)(a) is to be construed as a reference to turning up at the hearing and going through the procedure of giving evidence rather than as a reference to giving responsive and meaningful answers to the Committee. Support for this construction can be found in par 104(2)(a) which provides that if there is a failure to comply with the notice to appear at the hearing and give evidence the Committee may fix a date for another hearing at which “the evidence of the person under review is to be taken” (emphasis added). The reference to “is to be taken” contemplates that the person under review has either not given any evidence at all or has not answered a particular question. Section 104(5) includes failing to answer a question within the expression failing to comply with the requirements of the notice.
42 Support for the conclusion I have reached is also found in s 105. Section 105(1) provides that if the person under review fails to comply with the requirements of the notice under s 104(2)(b) then the Committee may proceed with the hearing “in the absence of the person under review” and if the person under review is a practitioner the Chairperson must notify the Director of the failure to comply. This provision therefore contemplates that the failure to comply with the requirements of the notice has occurred because the person under review is absent. The person under review is not absent where he or she has turned up at the hearing, taken an oath or made an affirmation and entered into the procedure of being asked, and giving answers to, questions put by the Committee. The “absence of the person under review” in par 105(1)(a) occurs because of the failure to comply with the requirements of the notice under par 104(2)(b). That failure is to comply with such requirements of the notice being the requirements referred to in s 104(1) which is either or both of, appearing at the hearing and giving evidence or appearing at the hearing and producing documents required to be produced.
43 Further, subs 105(2) renders subs 105(1) inapplicable where, before the hearing referred to in s 104(2), the person under review notifies the Committee that he or she has a medical condition preventing him or her from complying with the requirements. Again, this provision contemplates that the requirement is one to turn up at the hearing and give evidence or produce documents as the case may be. This construction is not consistent with the proposition that a requirement of the notice is to give evidence in the sense of giving responsive and meaningful answers to questions put by the Committee.
44 Although subs 105(6) provides that the reference to a failure to appear at the hearing and give evidence in subs 105(1) includes a reference to failing to answer a particular question I consider that this provision is a reference to giving no answer at all to a question put to the person under review rather than failing to give a responsive or meaningful answer to a question. This construction is supported by the exception to subs 105(6) contained in subs 105(7) where the person under review refuses to answer the question, which is not answered for the purposes of subs 105(6), on the ground of self‑incrimination. Such a situation contemplates no answer at all to the question. Although there is a change in terminology between subs 105(6) and subs 105(7) from “failing to answer” to “refuses to answer”, I do not consider that this change leads to a different conclusion as to the proper construction of subs 105(6). In particular it does not lead to a conclusion that subs 105(6) includes in a failure to answer an answer to a question which is non‑responsive to the question put.
45 The Director submitted that the contrast between “failing to answer a question” in subs 105(6) and “refuse or fail to answer a question” put by a Committee member in par 106E(1)(b) was telling as the meaning of “fail” may be affected by its association with “refuse”. Subsection 106E(7) provides that s 106E does not apply to the person under review. But even if one considers this juxtaposition of expressions, it does not assist in determining the proper construction of s 104 and s 105 as “refuse” in the context of subs 106E(1) is consistent with the fact of not being sworn or not making an affirmation and not producing the documents required to be produced. It gives no colour or flavour to “fail” inconsistent with the construction I have preferred in the context of s 104 and s 105.
46 In determining which is the preferable construction to give to the expressions fails to “give evidence” and “failing to answer a question” it is helpful to consider the consequences of the failure. It leads, through par 105(1)(b) and par 105(3)(a) inexorably to an immediate disqualification and an immediate inability of the medical practitioner’s patients to obtain Medicare benefits in respect of the services supplied by the medical practitioner thereafter. Where the Committee gives to the Determining Officer a report with a recommendation for disqualification of the practitioner (subs 106L(3)) and the Determining Officer directs that the practitioner be fully disqualified (s 106T and s 106U), that disqualification is subject to review by a Professional Services Review Tribunal (ss 114, 115 and 116). However where the full disqualification is made by the Director under subs 105(3) there is no appeal or review procedure provided in respect of the disqualification. It would be surprising if the legislature intended a review procedure in the case of a disqualification brought about by a result of a determination after a substantive hearing yet denied any appeal or such a review procedure where there was a disqualification because there was an issue whether a person under review had given a responsive or meaningful answer to a question put by the Committee.
47 It may be said that there is an avenue for the person under review to have the full disqualification by the Director lifted or revoked by complying with the requirement to “give evidence” or “answer a question” as the case may be: subs 105(4) and (5). Such an avenue is easily understood if the requirement was either to attend the hearing and commence to answer questions, which the person under review failed to do, or was to answer a question to which the person under review had given no answer at all. In such circumstances the failure to comply with the requirement would be quite clear – there was either no commencement of the process of answering questions or there was no answer at all to a particular question.
48 However the position would not be as clear cut where there had been an answer to a question which the Committee considered was non‑responsive or was not meaningful. If the person under review maintained that his or her answer was responsive and meaningful the issue could not be resolved by any appeal or review procedure. It is unlikely that the legislature intended such draconic consequences to follow the failure to give evidence or the failure to answer a question where the person under review contended that he or she had given a responsive or meaningful answer to the question. However such draconic consequences are understandable where there has been either no appearance at the hearing and a commencement of the procedure of answering questions or no response at all to a particular question.
49 The Director submitted that if one bears in mind the purpose of s 105 it was apparent that a non‑responsive answer to a question was a failure to answer the question for the purposes of s 105. It was said that if the peer investigation and review process provided by the Act was to be effective, with the Committee examining and reaching findings on inappropriate practices, the answers of the practitioner under review must be responsive and meaningful. The Director referred to the passage in the Second Reading Speech to which I have earlier referred in par 20 of these reasons. I accept that the provision for full disqualification in s 105 reflects the view that:
“a practitioner whose conduct in the rendering or initiating of publicly funded services is open to question should be required to participate in a professionally oriented process of review.”
Such participation occurs when the practitioner attends the hearing, produces any documents required to be produced, swears an oath or makes an affirmation and enters into the procedure of being questioned by the Committee and articulates answers to those questions. The reference to participating in the process of review in the Second Reading Speech takes as its reference point the earlier reference to a practitioner refusing to attend a hearing or to produce documents when required to appear before a Committee. I do not consider that the reference to the passage in the Second Reading Speech relied on by the Director requires me to reach a different conclusion having regard to my analysis and construction of the relevant statutory provisions.
50 Section 106EA which makes it an offence to obstruct or hinder the Committee or to disrupt a Committee hearing is of little assistance in determining the proper construction of s 104 and s 105. It was introduced into the Act by the Health Insurance Amendment Act (No 1) 1997 (Cth) which was almost four years after s 104 and s 105 was enacted. The Explanatory Memorandum for the bill for that Act makes it clear that the section was added because:
“Experience to date has shown that the current provisions are likely to be inadequate in dealing with disruptions and threats against Committee members.”
Conclusion
51 I have reached the conclusion that as the applicant articulated answers to the questions put to her by the members of the Committee there was no evidence or other material to justify the decision that the applicant had failed to give evidence or had failed to answer a question asked by the Committee for the purposes of par 104(2)(b) and the Chairperson was not entitled by subs 105(1) to give the Director the notice which she gave in her letter of 19 May 1999. The Chairperson’s decision must be set aside as a consequence of which the Director’s decision to disqualify fully the applicant and the disqualification must be set aside.
52 The Director should pay the applicant’s costs of the proceeding.
|
I certify that the preceding fifty‑two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. |
Associate:
Dated: 8 June 1999
|
Counsel for the Applicant: |
Mr M Settle |
|
Solicitor for the Applicant: |
Goddard Elliot |
|
Counsel for the Respondent: |
Mr P J Hanks |
|
Solicitor for the Respondent: |
Minter Ellison |
|
Date of Hearing: |
19 and 25 May 1999 |
|
Date of Judgment: |
8 June 1999 |
