Re Minister of Health v Sultan Akhtar Siddiqui [1990] FCA 50 (27 February 1990)

FEDERAL COURT OF AUSTRALIA

Re: MINISTER FOR HEALTH
And: SULTAN AKHTAR SIDDIQUI
No. G704 of 1987
FED No. 54
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - Health Insurance Act 1973 (Cth) - s.79(1B) - "excessive services" - whether services reasonably necessary for adequate medical care of fatient - test to be applied.

Administrative Law - Medical Services Review Tribunal - function on review - whether failure to fulfil its function.

Health Insurance Act 1973 (Cth) - ss.79(1B), 82, 104, 114, 119, 124A.

HEARING

SYDNEY
27:2:1990

Counsel for the applicant: Mr G.S. Hosking

Solicitor for the applicant: Australian Government Solicitor

Counsel for the respondent: Mr P.S. Hastings

Solicitors for the respondent: Williams Palmer Noss

ORDER

1. The decision of the Review Tribunal of 13 November 1987 be set aside and that the matter be remitted for reconsideration by a Review Tribunal.

2. The respondent should pay the applicant's costs of the proceedings.

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

DECISION

This is an appeal from a decision of a Medical Services Review Tribunal ("the Review Tribunal") given on 13 November 1987. The appeal is limited to a question of law. See s.124A of the Health Insurance Act 1973 (Cth) ("the Act"). The Review Tribunal had reviewed a determination of the Minister of Health which gave effect to a recommendation of a Medical Services Committee of Inquiry ("the Committee").

2. Section 82 of the Act empowers the Minister to refer to a Committee a matter that is relevant to the operation or administration of the Act or of the National Health Act 1953 (Cth) and which arises out of, or relates to the rendering of a professional service.

3. On 24 February 1983, the Minister referred to a Committee the question whether certain professional services rendered by the applicant, Dr S.A. Siddiqui, were reasonably necessary for the adequate medical care of his patients.

4. Section 79(1B)(a) of the Act defined 'excessive services' in this way:-

"a reference to excessive services is a
reference to professional services, being
services in respect of which medicare benefit
has become or may become payable and which
were not reasonably necessary for the adequate
medical or dental care of the patient
concerned."

5. Section 105 of the Act provides that, where the Committee has in its report expressed the opinion that a practitioner has rendered excessive services and has identified those services and a Medicare benefit is payable, or has been paid, in respect of any of those services, the Committee may, in the report, make recommendations that the practitioner be reprimanded or be counselled or that the Medicare benefits or a specified part of the Medicare benefits should cease to be payable and, where a Medicare benefit has been paid to the practitioner or another person, that the amount of the Medicare benefit or specified part thereof be payable by the practitioner to the Commonwealth.

6. In its report on Dr Siddiqui's services, given on 2 December 1985, the Committee identified a number of services which it considered to be excessive. It recommended that Dr Siddiqui be counselled and that he be ordered to pay $4,886.45 to the Commonwealth, being the Medicare benefits paid for the excessive services.

7. On 19 February 1986, the Minister so determined.

8. By letter dated 14 March 1986, the solicitors for Dr Siddiqui sought a review of the Minister's determination pursuant to s.114 of the Act. By letter of 19 March 1986, the solicitors for Dr Siddiqui specified 8 grounds to be relied on in the review. In accordance with that request, the Minister referred the matter to the Review Tribunal for review.

9. The procedure of a Review Tribunal is specified in s.119 of the Act. This provision and its effect have been considered in Minister of Health v. Thomson [1985] FCA 208; (1985) 60 ALR 701, McIntosh v. Minister of Health (1987) 17 FC.R. 463 and Tiong and Anor v. Minister for Community Services and Health (Pincus J., 21 July 1989, unreported). As was held in the latter two cases, the review is limited to the grounds specified in the request for review.

10. In McIntosh v. Minister for Health (1987) 17 FC.R. 463 at p 467, I described the function of a Review Tribunal in these terms:-

"Although it is limited to a consideration of
the documentary material forwarded to it by
the Minister, a Review Tribunal has the duty
for itself to exercise the function which the
Minister himself performed, namely to
determine whether or not to accept the
recommendation made by the Committee of
Inquiry. It does not exercise the function of
review on a point of law, it exercises the
function of review on the papers. Save that
the Review Tribunal was limited to reviewing
the documentary material, taking into account
the addresses made to it, it was entitled
itself to reconsider any matter contained in
the report and recommendation of the Committee
of Inquiry."

11. In Tiong and Anor v. Minister for Community Services and Health, Pincus J. likewise said:-

"The central task of the Tribunal, as I read
the Act, is to determine whether, on the
evidence before the Committee, its conclusions
are factually correct."

12. By a decision dated 13 November 1987, the Review Tribunal set aside the determination of the Minister.

13. It is agreed by counsel that the first ground relied upon by the Review Tribunal in setting aside the determination was not well founded. In a letter dated 8 August 1983, the Chairman of the Committee had written to Dr Siddiqui stating, inter alia:-

"During the previous hearings the subject of
your treatment of patients who may be eligible
for compensation was raised. You will recall
that the discussion, at times, inclined
towards the appropriateness of those patients
being billed in a way that gave rise to the
consequent payment of Commonwealth Medical
Benefits.
Having considered the matter since the hearing
on 29 August 1983, I have determined that the
subject matter abovementioned should not be
pursued during any further hearings of your
reference. It is apparent that the Committee
should now attend only to the question of
possible excessive servicing, and should not
consume hearing time on matters, like those
abovementioned, which will not be taken into
account in its final determination."

14. The matter there discussed by the Chairman had reference to s.18 of the Act which enables the Minister, in a case where the relevant medical expense arose out of an injury in respect of which the patient has received or is entitled to receive compensation, to make a determination with respect to the whole or part of the medical expense, the effect of which is that a Medicare benefit is not payable in respect thereof.

15. The Chairman of the Committee properly took the view that there was no matter arising out of the provisions of s.18 of the Act which was relevant to the proceedings before the Committee and, in the letter of 8 August 1983, he so advised Dr Siddiqui. Counsel are agreed that the Chairman's action was correct. Indeed, it was never criticized by Dr Siddiqui and was to his benefit.

16. It follows that the Review Tribunal was in error in concluding that the letter of 8 August 1983 in some way invalidated the proceedings before the Committee. Furthermore this matter was not raised in the two letters of request dated 14 March 1986 and 19 March 1986. Therefore, it was not a matter which was before the Review Tribunal.

17. Counsel for Dr Siddiqui has submitted, nevertheless, that the decision of the Review Tribunal should not be set aside. He submitted that the Review Tribunal also found for Dr Siddiqui on a different ground, namely that Dr Siddiqui had not rendered excessive services.

18. The Review Tribunal indeed held that, in determining whether or not the professional services under inquiry had been excessive, that is to say, not reasonably necessary for the adequate medical or dental care of the patient concerned, the Committee had wrongly employed an objective test. The Review Tribunal went on to say:-

"We are of opinion that in deciding what are
'excessive services' in section 79(1B)(a)
there must be some consideration of subjective
matters."
and:-
"In arriving at our decision we had regard to
the subjective as well as the objective
aspects of the case under review."

19. The Review Tribunal, after stating that its function was to exercise the function which the Minister himself performed, namely, to determine whether or not to accept the recommendation made by the Committee, expressed its ultimate finding in these terms:-

"Our conclusion is that having regard to the
view we have taken on Section 18 and to all of
the matters hereinbefore listed the
determination should be set aside."

These are the crucial findings.

20. The Review Tribunal did not hold that Dr Siddiqui did not render any excessive services. It criticised the approach taken by the Committee but, in its decision, it did not discuss any instance of servicing. I cannot draw the conclusion from the Tribunal's reasons that it turned its attention to the disputed services and formed the view with respect to each of them that it was not excessive.

21. Moreover, I am unable to find any basis for the Review Tribunal's contention that the Committee approached its task on a wrong basis. The Committee did not use the term "objective" or "subjective", but looked at all relevant matters including matters which could be described as subjective. The Committee specifically stated that the information presented by Dr Siddiqui was considered as being given in good faith. The Committee took into account Dr Siddiqui's view of the care required. The Committee also gave consideration to the particular circumstances of each patient. The Committee stated that it accepted that many of Dr Siddiqui's patients were financially and socially deprived and, as a result, may have exaggerated the symptoms of their illnesses. The Committee stated that, bearing this in mind, when considering each individual service, it largely accepted those consultations at which new symptoms were exhibited. The Committee dealt carefully with the circumstances of each patient in respect of whom services were challenged. What the Committee did not accept was that all the medical services rendered by Dr Siddiqui were reasonably necessary for the care of his patients.

22. It follows that there was no foundation for the view of the Review Tribunal that the Committee adopted a purely objective approach or that it rejected as irrelevant the needs of the patients or Dr Siddiqui's belief as to the care required or his belief that it was beneficial for the patient to see him on each occasion. The Committee did not consider Dr Siddiqui's perceptions to be irrelevant; but it concluded that, notwithstanding Dr Siddiqui's views, many of the services he performed were not reasonably necessary for the care of his patients.

23. In this light, the discussion by the Review Tribunal of the objective and subjective elements of the issue does not provide a reason not to set aside the decision of the Review Tribunal.

24. I should not close without mentioning that the notice of appeal as amended during the hearing raised the following question of law:-

"2.(b) whether the test of whether services in
respect of which a medicare benefit has become
or may become payable and which would not be
reasonably necessary for the adequate medical
care of a patient within the meaning of
Section 79(1B) of the Health Insurance Act
1973 is an objective test."
and the following ground:-
"4.(b) The Tribunal misdirected itself in
considering and preferring -
(i) the subjective views of the
respondent in relation to the treatment
found by the Committee to have been
'excessive' as not being reasonably
necessary; to
(ii) the objective (and contrary) views
taken by the members of the Committee as
a tribunal of experts."

Both the question of law and the ground of appeal as stated misunderstand the nature of the test to be applied and the nature of the function of a Review Tribunal.

25. The question before the Committee and the Review Tribunal was whether Dr Siddiqui rendered "services ... which were not reasonably necessary for the adequate medical or dental care of the patient concerned". It is not helpful to describe this question as being either objective or subjective. If a practitioner rendered services which, in his view, were not necessary for the adequate medical care of the patient, but did so, eg. for the purpose of enhancing his own income, the services rendered would not be reasonably necessary for the care of the patient. On the other hand, if the practitioner performed a service which, in his view, was necessary for the adequate care of the patient concerned, his belief would be relevant but would not determine the matter. The Committee, the Minister and the Review Tribunal each have the function of making up its or his own mind on the issue as to whether the service was reasonably necessary.

26. As the concept of "excessive services" implies unnecessary servicing by the medical practitioner at the expense of the health system and fault on the practitioner's part, the issue must always be examined having regard to the facts which were known or available to the practitioner and must take into account the practitioner's perception of the patient's condition and the care required. Nevertheless, the test is not whether the practitioner considered the service he provided to be reasonably necessary for the care of the patient, but whether, in the light of the information which the practitioner had or ought to have obtained, the service was necessary.

27. The words "reasonably necessary" in the definition refer to services which are reasonably appropriate. See per Higgins J. in The Commonwealth and the Postmaster General v. The Progress Advertising and Press Agency Co Pty Ltd [1910] HCA 28; (1910) 10 CLR 457 at p 469, and per Latham C.J., Rich, Dixon, McTiernan and Webb JJ. in Ronpibon Tin (N.L.) and Tongkah Compound (N.L.) v. Federal Commissioner of Taxation [1949] HCA 15; (1949) 78 CLR 47 at p 56. No doubt the Committee and the Review Tribunal are guided in their judgment of what is reasonably appropriate by the medical profession's understanding of acceptable practice. However, matters which could be described as subjective, in the sense in which the Review Tribunal used the term, are relevant. I therefore would not find in favour of the applicant on the question of law set out above.

28. Nor would I uphold the ground of appeal which alleges that the Tribunal misdirected itself by considering and preferring the subjective views of Dr Siddiqui to the objective and contrary views of the members of the Committee. The view which Dr Siddiqui held at the time he performed each service and any opinion expressed by him during the proceedings before the Committee and the Review Tribunal were relevant to be taken into account. The views which the members of the Committee had expressed were also relevant to be taken into account for the members were experts and the Review Tribunal could place such weight on their views and expertise as it saw fit.

29. If the Review Tribunal preferred the case put by Dr Siddiqui to the opinion of the Committee, it was entitled to do so. However, its function was not simply to choose between the view which Dr Siddiqui had formed at the time he performed the services and the view expressed by the Committee; its task was to make up its own mind having regard to the material before it as to whether it was satisfied that Dr Siddiqui had performed excessive services.

30. As I read the Review Tribunal's reasons, it did not undertake this task. The Review Tribunal set aside the determination not because it had come to a different conclusion on the substantive point, but merely because it considered that the Committee had erred in law by adopting an objective test. The Review Tribunal, therefore, did not properly fulfil the function reposed in it. This is, however, not the point raised in the notice of appeal.

31. For the reasons I have given, the order of the Court must be that the decision of the Review Tribunal of 13 November 1987 be set aside and that the matter be remitted for reconsideration by a Review Tribunal. The respondent should pay the applicant's costs of the proceedings.