Re Director-General of Health v John R Robinson [1984] FCA 3; (1984) 1 FCR 179; 5 ALD 367 (3 February 1984)

FEDERAL COURT OF AUSTRALIA

Re: DIRECTOR-GENERAL OF HEALTH
And: JOHN R. ROBINSON [1984] FCA 3; (1984) 1 FCR 179
No. TG2 of 1983
National Health Act - Administrative Law
[1984] FCA 3; 5 ALD 367

COURT

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIAN DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)

CATCHWORDS

National Health Act - Isolated patients' travel and accommodation assistance scheme - respondent resident on King Island - respondent referred to orthorpaedic specialist in Hobart - need for assistance - sister available to provide transport and accommodation - whether specialist was the nearest suitable specialist with respect to the patient - suitably qualified specialist in Launceston or Melbourne.

National Health Act 1953, s.13(3)(b)

Bowden and the Director General of Health (unreported T82/3)

Collins v. Minister for Immigration, [1981] FCA 147; (1981) 36 ALR 598.

Administrative Law - National Health Act - Statutes - Interpretation - Monetary allowances for travel and accommodation for patients in isolated areas - Respondent resident on King Island - Respondent referred to specialist in Hobart - Whether Launceston and Melbourne specialists were "suitable" within the meaning of s. 13(3) of the National Health Act 1953 (Cth) - Respondent refused allowance by delegate of Director-General of Health - Decision of delegate set aside by Administrative Appeals Tribunal - Director-General appealed to Federal Court from decision of Administrative Appeals Tribunal - Advisability of providing guidelines for referring doctors - National Health Act 1953 (Cth), Part III, s. 13(3)(b) - Administrative Appeals Tribunal Act 1975 (Cth), ss 33(1), 43(2). Part III of the National Health Act 1953 (Cth) (the Act) makes provision for certain monetary allowances in subvention of the cost of travel and accommodation necessary to enable a patient who lives in an isolated area of Australia to obtain certain specialist medical treatment.

The Administrative Appeals Tribunal (the Tribunal) set aside a decision by a delegate of the Director-General of Health (the applicant) which precluded payment of any allowance to the respondent under Pt III of the Act for the respondent's treatment for a fractured ankle in Hobart by an orthopaedic surgeon on the ground that a condition of entitlement to such an allowance, which was imposed by s. 13(3)(b) of the Act, namely that the delegate be "satisfied that . . . the specialist . . . is . . . the nearest suitable specialist . . . with respect to the patient", had not been fulfilled. Evidence showed that there were orthopaedic surgeons qualified and equipped to treat the respondent in Launceston and in Melbourne, which were both nearer to the respondent's place of residence in King Island than was Hobart. The orthopaedic surgeon had certified that it was necessary for the patient to stay for a period of forty-three nights in connection with his present medical treatment. The Tribunal concluded that surgeons practising in Launceston and Melbourne were not "suitable" within the meaning of that word in s. 13(3)(b) of the Act. Paragraph 7 of the Tribunal's reasons for its decision stated:

"On the recommendation of the specialist, the applicant (patient)

did not return to King Island between appointments because it would
have been unsuitable for him to return to live in single men's
quarters."

Paragraph 10 of the Tribunal's reasons for its decision stated that the

applicant needed personal assistance which he obtained from his sister in Hobart, which would not have been available in Melbourne (or Launceston). The applicant appealed to a single judge of the Federal Court of Australia from the decision of the Tribunal and the following submissions were made on behalf of the applicant:

1. A circumstance unrelated to the health of the patient cannot afford a ground upon which to conclude that a specialist was not "suitable" within the meaning of that word in s. 13(3)(b) (of the Act).

2. The reasons in writing given, pursuant to s. 43(2) of the Administrative Appeals Tribunal Act 1975, by the Tribunal for its decision demonstrated that the Tribunal either had found as a fact that there were circumstances related to the health of the respondent which grounded its decision when there was no material before the Tribunal on which such a finding could properly be based, or had grounded its decision that no specialist in Melbourne or Launceston was "suitable" on circumstances unrelated to the health of the patient.

Held: that the Tribunal's conclusion could not be characterised as one to which the Tribunal could not reasonably have come and therefore could not be characterised as one marred by error of law.

Accordingly, the appeal would be dismissed.

Collins v. Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 36 ALR 598, referred to.

Ordinary usage of the word "suitable" suggests that in s. 13(3)(b) the requirement of appropriateness of "the . . . specialist . . . with respect to the patient" which the word expresses, invites a consideration of a wide range of circumstances and a balancing of circumstances for and against a conclusion that the requirement has been satisfied.

". . . the suitability of a specialist with respect to a patient can
be ascertained only upon a consideration of each circumstance
attending treatment by that specialist which may seriously affect an
interest of the patient . . . the patient's health is not the only
interest of which s. 13(3)(b) requires consideration . . . ".

The word "suitable" carries, in s. 13(3)(b) no connotation of a comparison

between a specialist and another in order to determine which specialist would better suit the patient's needs or wishes or convenience. Nor is it the patient's conception of his or her interests or the patient's attitude to some circumstance attending, or likely to attend, treatment by the specialist which is determinative of suitability.

HEARING

Melbourne, 1983, July 28; 1984, February 3. 3:2:1984

APPEAL.

Appeal from a decision of the Administrative Appeals Tribunal constituted by

a Senior Member which set aside a decision by the delegate of the applicant.

P. A. Bowen, for the applicant.

No appearance for the respondent.

Solicitor for the applicant: P. A. Bowen.
J. D. WHITEHEAD

ORDER

The appeal be dismissed.

Appeal dismissed.

DECISION

Appeal from a decision of the Administrative Appeals Tribunal.

2. The respondent fractured his ankle while he was living on King Island. Treatment by an orthopaedic surgeon was required. He was referred to one who carried on practice in Hobart. Part III of the National Health Act 1953 makes provision for certain monetary allowances in subvention of the cost of travel and accommodation necessary to enable a patient who lives in an isolated area of Australia to obtain certain specialist medical treatment. The Administrative Appeals Tribunal set aside a decision by a delegate of the applicant which precluded payment of any allowance under Part III in respect of the respondent's treatment in Hobart by the orthopaedic surgeon. The ground of the delegate's decision was that a condition of entitlement to such an allowance, imposed by s.13(3)(b) of the National Health Act, had not been fulfilled. The condition is that the delegate be "satisfied that .... the specialist .... is .... the nearest suitable specialist .... with respect to the patient". There were orthopaedic surgeons qualified and equipped to treat the respondent in Launceston and in Melbouurne, which are nearer to King Island than Hobart is. Therefore, the delegate concluded, the statutory requirement was not satisfied. But the Tribunal concluded that surgeons practising in Launceston and Melbourne were not "suitable", within the meaning of that word in s.13(3)(b). Their skills were appropriate, they had the equipment required for treatment of the respondent's ankle, and there was no reason to think that the respondent would hesitate to accept any of them as his doctor. But in or near Launceston or Melbourne the respondent could not, whereas near Hobart he could, be accommodated, during the period when he was to be treated, in the home of a relative. It was by reference to that circumstance, and to considerations depending thereon, that the Tribunal reached its conclusion. A letter dated 17 November, 1981, from the respondent to a senior officer of the applicant's Department, formed part of the material which the Administrative Appeals Tribunal had before it for the purpose of reviewing the delegate's decision. That letter was in the following terms:

"With reference to rejection of my claim for
I.P.T.&A. The reason I was sent to Hobart by Dr.
Frank Neumann was that it was realized that I would
need to stay in Hobart for an extended period with
the injury I had sustained.

As the only place where I have private
accommodation is at Nubeena and a person with a car
to take me back and forth to the Doctor. Had I
went to Melbourne or Launceston I would not been
able to cope staying in a hotel.

If my appeal is rejected could you please return my
air ticket, taxi receipts and accommodation receipt."

3. The respondent, a single man aged 44, travelled from King Island to Hobart by aeroplane on 17 September 1981. On that day he was admitted to hospital, where he remained under treatment by the orthopaedic surgeon until 21 September 1981. Upon discharge from hospital he resided with his sister at Nubeena, which is about 100 kilometres south of Hobart, until 2 November 1981, when he returned to King Island. On 24 September and on 15 and 30 October 1981 he was treated by the orthopaedic surgeon in Hobart.

4. The submissions on the hearing of this appeal by Mr. Underwood of counsel for the applicant may be summarised thus:

1. A circumstance unrelated to the health of the patient
cannot afford a ground upon which to conclude that a specalist
is not "suitable", within the meaning of that word in
s.13(3)(b).

2. The reasons in writing given, pursuant to s.43(2) of the
Administrative Appeals Tribunal Act 1975, by the Tribunal for
its decision demonstrated that the Tribunal either had found as
a fact that there were circumstances related to the health of
the respondent which grounded its decision when there was no
material before the Tribunal on which such a finding could
properly be based, or had grounded its decision that no
specialist in Melbourne or Launceston was "suitable" on
circumstances unrelated to the health of the patient.

5. Of the circumstances to which the Tribunal appears to have accorded significance in reaching its decision, I consider first what appears in paragraph 7 of the Tribunal's reasons for its decision:

"On the recommendation of the specialist, the
applicant did not return to King Island between
appointments because it would have been unsuitable
for him to return to live in single men's
quarters."

6. The material on which that finding was based was a statement made by a Mr. Gough, who spoke to Mr. Ballard, the senior member who constituted the Tribunal, by telephone from King Island during the hearing. The respondent was with Mr. Gough, by whom questions were repeated to the respondent and the respondent's answers were repeated to Mr. Ballard. Mr. Gough had said:

"I have, in fact, here in front of me receipts from
the specialist for the dates of 24/9, 15/10 and
30/10, and during that time he was accommodated at
Nubeena and was transported from Nubeena."

Mr. Ballard responded:

"Yes, but why did he not go home between these
consultations is the question Mr. Bowen is asking
you?"
(Mr. Bowen was representing the applicant at the
hearing.)

Mr. Gough replied:

"If in fact he flew back, and was in a medically
fit position to fly back, I would not know. I will
just check. On recommendation from the specialist
apparently that after his first appointment he
stay in the area because it would be unsuitable to
return to single men's quarters living and also to
have to do the flight again. And an appointment
was made immediately to return on 15/10 and if
anything happened on 15/10, a further appointment
was made on the 30th, again with the recommendation
of staying in the area."

It may be thought that those statements are consistent with an answer written by the orthopaedic surgeon on a form of certificate signed by him on 30 October 1981 which the applicant required to be furnished in support of applications under Part III of the National Health Act. Paragraph 2 of the printed form reads thus:

"Patient stay for treatment. If it is necessary
for the patient to stay for a period in connection
with the present medical treatment how many extra
nights are required? -------------- (nights)
(IN WORDS)"

In the space provided the orthopaedic surgeon wrote : "Forty Three".

7. To the question by Mr. Ballard as to why the respondent could not have lived in a hotel in Launceston or Melbourne, Mr. Gough replied, in the respondent's presence : "It was an ankle injury, sir. It was a multiple fracture of the ankle and that is why the replacement doctor referred him to a particular specialist at Hobart. It also fitted in with the convenience of being able to get transport from his accommodation to the specialist". The reference to the "replacement doctor" is to the doctor who referred the respondent to the orthopaedic specialist and who was at that time locum tenens of the medical practitioner on King Island.

8. In my opinion this material justified the finding stated in paragraph 7 of the Tribunal's reasons for decision. But it is to be observed that neither that paragraph nor the material I have quoted makes it quite clear whether the surgeon's recommendation proceeded from, on the one hand, a judgment concerning the likely, or the possible, harm to the respondent's health of journeys back and forth and of accommodation in single men's quarters or from, on the other hand, a judgment based on other considerations - as, for example, a comparison of costs, or a regard to the respondent's comfort or convenience, but without reference to his health.

9. Another observation to be made about the finding stated in paragraph 7 of the Tribunal's reasons is that it does not, in itself, suggest that a specialist practising in Hobart rather than in any other Australian city would be "suitable" : it suggests no more than that only those specialists who practised in places where accommodation was available to a single man under treatment for a fractured ankle would be "suitable".

10. The next circumstance to which the Tribunal appears to have accorded significance in reaching its decision is stated in paragraph 10 of its reasons, which reads:

"On these facts the nearest specialist was at
Melbourne. But there were medical and personal
reasons for the choice of Hobart which were absent
in Bowden's Case. The applicant needed personal
assistance which he obtained from his sister in
Tasmania which would not have been available in
Melbourne (or Launceston); this extended to his
being taken to Hobart and back as required for his
medical treatment. The specialist did not allow
the applicant to return to the single men's
quarters between consultations and he was in fact
away from King Island for 43 days."

11. Bowden's case was a decision by Mr. Ballard that a gynaecologist practising in Hobart was not "the nearest suitable specialist .... with respect to" a patient who lived on King Island. The patient had chosen to consult the gynaecologist in Hobart rather than one in Burnie, which is nearer than Hobart to King Island. Her submission was that the gynaecologist in Burnie was not "suitable" because in that place she would have incurred the cost of her accommodation there, whereas in Hobart she was accommodated by relatives without cost. She had no other reason to prefer the Hobart gynaecologist. She sought further support for her submission in the circumstance that, because one of the allowances payable under Part III of the National Health Act is in respect of the cost of the patient's accommodation during the period away from home, treatment in Hobart rather than in Burnie reduced the amount payable in respect of that treatment under Part III. That latter circumstance, Mr. Ballard decided, in my opinion correctly, was irrelevant to a consideration of the question whether a specialist was "suitable". To regard the circumstance that the patient would gain entitlement to the accommodation allowance provided by Part III if treated by a specialist in one place, but would not gain that entitlement if treated by another specialist in another place, as tending against a conclusion that the former specialist was "suitable", within s.13(3)(b), would be to evaluate suitability not with respect to the patient, but with respect to the conservation of public funds.

12. The reference to Bowden's case serves to draw a contrast between circumstances affecting the patient's health or personal comfort and circumstances affecting other interests, or the wishes, of the patient.

13. No more of the material before the Tribunal than what I have set out herein was relevant to the findings stated in paragraph 10 of the Tribunal's reasons. Again it may be observed that neither the finding that the respondent "needed personal assistance which he obtained from his sister in Tasmania which would not have been available in Melbourne (or Launceston)" nor the material on which the finding was based makes it quite clear what the "personal assistance" was, of which the respondent stood in need. It is therefore difficult to determine, upon the evidentiary material alone, what the consequences would have been if that need had not been satisfied. But s.33(1) of the Administrative Appeals Tribunal Act 1975 freed the Tribunal of the rules of evidence and authorised the Tribunal to inform itself on any matter in such manner as it thought appropriate. It may be that the Tribunal was well aware, by reason of Mr. Ballard's own experience, of the effects, upon a man's physical capacity to live and move about without assistance, of an ankle fracture and of whatever splinting might be applied in treatment of the fracture. From his own experience, whether gained from his work as a senior member of the Tribunal or otherwise, Mr. Ballard may have known to what extent, and in what respects, the claim by the respondent in his letter that he would not have been "able to cope staying in a hotel" was correct. If the Tribunal did utilise such knowledge in making its decision, it was not in error in doing so, in my opinion. But the reasons for decision do not disclose that the Tribunal did utilise knowledge not derived from the material before it, nor whether, if it did, it considered that lack of the "personal assistance" of which it declared the respondent to have been in need would have been harmful to the respondent's health or would merely have rendered him uncomfortable and miserable.

14. There is one statement of fact in paragraph 10 of the Tribunal's reasons which cannot, I should think, be literally correct : that the personal assistance which the respondent needed "would not have been available in Melbourne". In a metropolitan centre such as Melbourne there are very few personal physical needs which cannot be satisfied for a price. I think that the Tribunal may have thought that the "personal assistance" which the respondent neeeded would have been available in Melbourne only at a price which the respondent could not have afforded, and that for that reason the assistance would not have been "available" to the respondent.

15. Ordinary usage of the word "suitable" suggests that in s.13(3)(b) the requirement of appropriateness of "the .... specialist .... with respect to the patient", which the word expresses, invites a consideration of a wide range of circumstances and a balancing of circumstances for and against a conclusion that the requirement has been satisfied. Because the requirement is imposed in respect of the relationship of doctor and patient it is natural to think of the requirement as directed to the health of the patient, the promotion or restoration of which is the object the relationship is undertaken to achieve. But in ordinary usage a doctor could not in my opinion be said to be suitable with respect to a patient for whom attendance on that doctor would be ruinously expensive, or contrary to religious belief, or unacceptable because of a previous unsatisfactory professional relationship between the doctor and the patient or a relative or friend of the patient. Other examples may be conceived of circumstances, unrelated to the patient's health, which would preclude one from describing, in ordinary speech, a doctor as suitable.

16. I have been unable to find in the provisions of Part III of the National Health Act any reason to confine, by construction, the meaning of the word "suitable" in s.13(3)(b) within narrrower bounds than ordinary usage would allow it in the context in which it is found. The restriction which the context may be thought at first to suggest can be seen to be untenable, because of the absurdity which would result. A provision which requires the identification of the nearest suitable specialist with respect to the patient might be thought to be concerned merely with the professional skill appropriate to the treatment of that patient's ailment. But it would be absurd to admit the conclusion that even the most skilful of gynaecologists or neurosurgeons was "suitable .... with respect to the patient" for whose proper treatment by that specialist equipment was required which was not available in the place where he practised, or whom that specialist for some personal reason refused to treat.

17. I hope I am not insensitive to the administrative difficulties which consideration, and sometimes a balancing, of diverse circumstances concerning suitability will entail. The fewer and simpler the criteria by reference to which an administrative decision is to be taken, the less expensive and troublesome the process of decision making. The difficulties are compounded by the circumstance that it is ordinarily a doctor practising in an isolated area who selects, for the purpose of referring his patient to a specialist, the person who the applicant, or his delegate, or the Administrative Appeals Tribunal, must be satisfied was "the nearest suitable specialist". If such a doctor could be provided with a few clear rules by which to identify the specialist who would answer that statutory description, the administration of Part III of the National Health Act would be greatly facilitated. But in my opinion the suitability of a specialist with respect to a patient can be ascertained only upon a consideration of each circumstance attending treatment by that specialist which may seriously affect an interest of the patient. No doubt the patient's health is the most obvious interest to consider. But I do not think that it is the only interest of which s.13(3)(b) requires consideration.

18. Not every interest of the patient need be considered in determining the suitability of a specialist, but only an interest which in the judgment of the applicant, or of the Tribunal on appeal, will be seriously affected by reason of a circumstance attending treatment by that specialist. The word "suitable" carries, in s.13(3)(b), no connotation of a comparison between one specialist and another in order to determine which specialist will better suit the patient's needs or wishes or convenience. Nor is it the patient's conception of his or her interests, or the patient's attitude to some circumstance attending, or likely to attend, treatment by the specialist which is determinative of suitability. It is the applicant, or his delegate, and the Tribunal on appeal, to whom s.13(3)(b) commits the determination of suitability, subject only to the supervisory jurisdiction of this court to correct error of law.

19. I do not perceive any error of law infecting the decision of the Tribunal. If the Tribunal found that the respondent would suffer harm to his health by living for 43 days without "personal assistance", that was a finding which the material before the Tribunal, interpreted in the light of knowledge the Tribunal may have had, could justify. In Collins v. Minister for Immigration [1981] FCA 147; (1981) 36 ALR 598 at 601 the Full Court of this court (Fox, Deane and Morling JJ.) observed:

"A number of authorities was cited by counsel for
the appellant in support of the propositions that
the making of a decision against the evidence or
the weight of the evidence and the making of an
unreasonable decision are errors of law. We find
it unnecessary to examine these authorities for the
reason that, in our opinion, there is no factual basis
to found those propositions. We would,
however, comment that the concepts of a decision being
against the evidence and of being against the
weight of the evidence belong to appeals from
courts of law and have particular application to
jury verdicts. Even in that context, they do not
involve questions of law. They certainly have no
place when the appeal, or review, is of proceedings
of an administrative tribunal which is not bound by
the rules of evidence and which, subject to the
obligation to observe the requirements of natural
justice, can inform itself as it chooses : see
s.33(1)(c) of the Administrative Appeals Tribunal
Act 1975. An appellant who attacks a conclusion of
the Tribunal because 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."

20. If the Tribunal found that it was not harm to the respondent's health, but serious discomfort and loneliness which would have been caused by deprivation of that personal assistance, the finding was justified by the material, and it was in my opinion a finding as to a circumstance relevant to a determination whether an orthopaedic surgeon practising in Melbourne or in Launceston was "suitable". If the Tribunal found that personal assistance of the kind required was not available in Melbourne and if that was a finding which could not be sustained (as I do not think it could), yet a finding would have been justified that such assistance would have been available, whether in Melbourne or Launceston, only at a cost beyond what the respondent, whose occupation was that of a driver, could reasonably have been expected to pay; and such a finding would have been, in my opinion, as to a circumstance relevant to a determination whether an orthopaedic surgeon practising in Melbourne or Launceston was "suitable". And if upon a consideration of all the circumstances relevant to a judgment of the respondent's interests the Tribunal concluded - as I think it may safely be taken to have concluded in substance - that it was not reasonable to require the respondent to accept as his specialist an orthopaedic surgeon practising in Melbourne or Launceston, then that conclusion, which in my opinion would justify the decision, could not be characterised as one to which the Tribunal could not reasonably have come, and therefore could not be characterised as one marred by error of law. It is not for this court to substitute any finding which it might have made, or any conclusion it might have reached on the question whether it was satisfied that the orthopaedic surgeon who treated the respondent was the nearest suitable specialist. It is the satisfaction of the applicant or his delegate, and upon review the satisfaction of the Tribunal, which s.13(3)(b) requires.

21. The appeal is dismissed.