FEDERAL COURT OF AUSTRALIA

McFarlane v Batman [2000] FCA 1663

DR JEAN FERGUS McFARLANE v GAIL BATMAN

QG 192 OF 1997

DRUMMOND J

BRISBANE

10 NOVEMBER 2000

ON APPEAL FROM THE PROFESSIONAL SERVICES REVIEW TRIBUNAL

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of and incidental to the appeal, including reserved costs, if any.

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

ON APPEAL FROM THE PROFESSIONAL SERVICES REVIEW TRIBUNAL

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Professional Services Review Tribunal dated 4 November 1997.  The Tribunal affirmed the final determination of a determining officer made under s 106T the Health Insurance Act 1973 (Cth) on 23 April 1997 that “Dr McFarlane be disqualified for a period of 12 months from the time when this determination takes effect in respect of the initiation of all services to which an item relates in Groups P3 and P4 of the Pathology Services Table”, and further ordered that “Dr McFarlane be fully disqualified for a period of 6 months from the time when this determination takes effect”.  This is due, in part only, to resolution of the present proceedings being delayed, at the joint request of the parties, until the Full Court’s decision as to the lawfulness of the establishment of this Tribunal in Tankey v Adams [2000] FCA 1089 was delivered.

2                     The appeal to this Court is limited by s 124A the Health Insurance Act 1973 (Cth) to error of law in the Tribunal’s decision.  By the supplementary notice of appeal, Dr McFarlane asserts that the Tribunal’s decision is flawed with three errors of law.  The first contends that the Tribunal’s decision was void because it involved exercise of the judicial power of the Commonwealth.  That argument is no longer available in view of the decision of the Full Court of this Court referred to.

3                     `The second ground of appeal asserts that the Tribunal’s determination was flawed with error of law constituted by its failure to give Dr McFarlane procedural fairness.  Finally, it is alleged that the Tribunal’s determination contained an invalidating error of law because it was based upon a misconstruction of the Professional Services Review Committee’s report or based on a finding by that Committee which was itself void because of the absence of material to support the finding.

4                     The thrust of the findings made at all levels - by the Professional Services Review Committee, the determining officer and then the Professional Services Review Tribunal - was that Dr McFarlane had engaged in conduct in the period between 1 January and 31 December 1994 that was unacceptable to the general body of general medical practitioners at the time constituted by her grossly excessive use of pathology referrals.

5                     Dr McFarlane has appeared in the present proceedings to represent herself and has provided brief written contentions of fact and law.  It is apparent from this statement of contentions that Dr McFarlane defends the manner in which she conducted her medical practice and rejects as unjustified the criticisms of it made by the various bodies that I have referred to, culminating in the decision of the Professional Services Review Tribunal.  None of the issues that she seeks to ventilate in these contentions, however, involves any assertion of error of law on the part of the Tribunal or indeed on the part of any of the anterior decision-makers.  As I have said, Dr McFarlane’s assertions are that each of those bodies took a wrong view of the facts of the case in coming to conclusions adverse to her.

6                     The only other issue that Dr McFarlane raised at the hearing was the contention that the members of the Professional Services Review Committee were inappropriately qualified to be able to form a reliable view of her professional conduct.  Five medical practitioners constituted the Committee.  The Committee was expanded beyond the normal size of a committee usually appointed to deal with such matters in so far as it included a specialist physician and a specialist pathologist.  It is enough for this Court to say that whatever views Dr McFarlane may have about the professional competence of the members of that Committee to reach the determination they made, her challenges to the professional competence of the members of the Committee do not give rise to any error of law which invalidates the decision of the Tribunal, and it is the decision of the Tribunal alone which is before me for review.

7                     There being no basis upon which, it seems to me, Dr McFarlane has attempted to identify invalidating error of law in the Tribunal’s decision, the appeal will be dismissed.

8                     The appellant will be ordered to pay the respondent’s costs of and incidental to the appeal, including reserved costs, if any.

Associate:

Dated:              17 November 2000