Lee v Maskell-Knight [2004] FCAFC 2 (7 April 2004)

ADMINISTRATIVE LAW – judicial review of a decision of the Professional Services Review Tribunal – medical practitioner – whether the Health Insurance Act 1973 (Cth) requires that a final determination under s 106T of that act be made by the same person as made the draft determination provided for in s 106S of the act rather than merely by the person holding the relevant office at the relevant time – whether the Tribunal’s report disclosed an error of law as that report was allegedly based on an unlawful sampling technique - whether the Professional Services Review Committee denied to the medical practitioner natural justice when it allegedly made adverse findings against him in its final report not foreshadowed in a draft report provided to him to comment upon, where those adverse findings were accepted by the Tribunal.

Health Insurance Act 1973 (Cth) s 86, s87, s88, s89, s 101, s 102, s106, s 114, s 115, s116, s 117, s 118, s 119, s 124A
Judiciary Act 1903 (Cth) s 39B

Yung v Adams (1997) 80 FCR 453 approved
O’Reilly v Commissioners of the State Bank of Victoria [1982] HCA 74; (1983) 153 CLR 1 referred to
Adams v Yung (1998) 83 FCR 248 distinguished
Retnaraja v Morauta [1999] FCA 80; (1999) 56 ALD 187 referred to
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 195 ALR 502 referred to
Health Insurance Commission v Grey [2002] FCA 265; (2002) 120 FCR 170 referred to
Traill v McRae [2002] FCAFC 235; (2002) 122 FCR 349 referred to

DR IL-SONG LEE v CHARLES MASKELL-KNIGHT

N552 OF 2003

HILL, MARSHALL & FINKELSTEIN JJ
7 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N552 OF 2003

BETWEEN:	DR IL-SONG LEE APPLICANT
AND:	CHARLES MASKELL-KNIGHT RESPONDENT
JUDGES:	HILL, MARSHALL & FINKELSTEIN JJ
DATE OF ORDER:	7 APRIL 2004
WHERE MADE:	SYDNEY

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N552 OF 2003

BETWEEN:	DR IL-SONG LEE APPLICANT
AND:	CHARLES MASKELL-KNIGHT RESPONDENT

JUDGES:	HILL, MARSHALL & FINKELSTEIN JJ
DATE:	7 APRIL 2004
PLACE:	SYDNEY

1 Before the Court is an application brought under s 124A of the Health Insurance Act 1973 (Cth) ("the Act") by way of appeal from a decision of the Professional Services Review Tribunal ("the Tribunal") constituted by the Honourable AR Neaves (President) and Professor Tiller and Dr Ramsay (members) given on 8 April 2003. The Tribunal affirmed a determination under s 106L made by the respondent, "the Determining Officer", appointed pursuant to s 106Q of the Act. The appeal is an appeal on, and that is to say "only on", a question of law. The application is heard by a Full Court of this Court, pursuant to a decision of the Chief Justice of this Court given under s 20(1A) of the Federal Court of Australia Act 1976 (Cth).

2 The appeal arises under Part VAA of the Act which was repealed by item 63 of Schedule 1 to the Health Insurance Amendment (Professional Services Review) Act 1999 (Cth) ("the 1999 Act"). However it is common ground that the provisions of the Act in force before the commencement of Schedule 1 to the 1999 Act, continued to apply in respect of the present matter, notwithstanding that repeal.

3 Part VAA of the Act incorporates what is referred to as "the Professional Services Review Scheme". That is a scheme under which, for present purposes, a doctor’s conduct can be examined to determine whether it involves "inappropriate practice". If it does, then the scheme provides that action can be taken in reference to that inappropriate practice. The scheme is an essential safeguard to protect the system of payment of Medicare benefits. Where a doctor is found to have engaged in inappropriate practice, he or she may be required to repay to the Commonwealth the whole or a part of the Medicare benefit paid in respect of medical services forming part of the inappropriate practice and the practitioner can be disqualified from providing services to patients and his or her authority to prescribe or dispense pharmaceutical benefits may be revoked or suspended.

4 In one sense, therefore, the scheme involves what may be described as peer review of services performed by a medical practitioner having some of the characteristics, at least, of a disciplinary procedure. The outcomes which may follow the peer review, whether reprimand, counselling, repayment of benefits or disqualification are not directly imposed as punishment for behaviour but rather, as Davies J said in Yung v Adams (1997) 80 FCR 453 at 472, "they are imposed with a view to protecting patients and the Commonwealth against abuse of the system."

5 The Part VAA scheme is initiated by a referral made under s 86 of the Act by the Health Insurance Commission ("the Commission") to the Director of Professional Services Review ("the Director"). Such a referral must, in accordance with s 86(1), be in writing and refer the Director to conduct which relates to one or both of:-

6 "Inappropriate Practice" is defined in s 82 of the Act. In general terms it can be said that inappropriate conduct must be related to the rendering or initiating of services by the doctor and be conduct which "would be unacceptable to the general body of general practitioners".

7 The relevant referred services must have been rendered during the two year period preceding the referral, whether or not any or all of the services were initiated before the start of that period.

8 In the present case, the referral was dated 13 May 1997 and related to all services rendered and initiated by Dr Lee from his practice location at 87 Rowe Street, Eastwood, during the period 1 July 1995 to 30 June 1996 inclusive. Under the heading "Reasons for the Decision to Refer", the Commission noted that it was concerned that Dr Lee might not be able to provide an appropriate level of clinical input when persistently rendering such a high volume of services. The referral noted that in the referral period Dr Lee had provided 19,386 services being, on some days, between 61 and 80 services per day and, on other days, between 81 and 100 services per day. These number of services being substantially above the 99^th percentile of all active, vocationally registered, general practitioners in Australia.

9 By force of s 87 of the Act, a referral is required to specify whether it relates to one or both of the:

10 As required by s 88 of the Act, the Commission sent a copy of the referral to Dr Lee within 48 hours of sending the referral to the Director. That copy was accompanied by a notice inviting Dr Lee to make written submissions to the Director within 14 days, stating why he should dismiss the referral without setting up a Professional Services Review Committee ("the Committee").

11 The legal basis of that notice is to be found in s 89 of the Act. That section provides that the Director is entitled either to dismiss the referral or set up a Committee to consider whether the doctor had engaged in inappropriate practice. The Director in the present case elected to set up a Committee. The instrument setting up the Committee was dated 27 January 1998. While this was clearly more than 28 days after the Director received the referral, s 89(2) of the Act provides that the Director’s decision on the referral was not rendered invalid merely because it was not made within the 28 day period.

12 Under the Act, the Committee so set up is required to meet in private and to regulate its meetings as it thinks fit. Specifically, the Committee may hold hearings and take evidence and require production of documents: s 101. It must hold a hearing if it forms the view that the doctor may have engaged in inappropriate practice in connection with rendering or initiating the referred services. As required under s 102 of the Act, in the present case, the Committee having formed the view that the Doctor may have engaged in inappropriate practice, gave to him written notice of a proposed hearing. That written notice was required to particularise the matter to which the hearing related. The document of particulars read as follows:

13 A letter sent by the Secretary of the Committee to Dr Lee listed certain patients, apparently the 40 patients with the greatest number of attendances, as well as patients said to have been seen by the doctor on 23 March 1996 and 15 May 1996.

14 Dr Lee prepared a written submission in which he pointed out that of some 10,000 active patients for whom he provided services, 95% of them were of Korean origin and like Dr Lee, spoke Korean. In consequence, he said, his practice was not an average practice.

15 Under s 106L the Committee was required to give to the Determining Officer a written report setting out its findings on whether the Doctor engaged in inappropriate practice in connection with the referred services. However, before doing so, the Committee in a letter dated 27 June 2000, provided Dr Lee with a copy of the report that it proposed to give to the Determining Officer. It did so, so as to ensure that Dr Lee appreciated the Committee’s concerns and had an opportunity to respond to them. The Committee asked Dr Lee to make any submissions he cared to make in writing before 25 July 2000, following which the Committee would consider the submissions and might or might not modify the report before sending it to the Determining Officer.

16 Having regard to the submissions made to us, the report is more relevant for what it does not refer to than for what it does.

17 The report noted that, "in an attempt to gain insight into the level of clinical input provided by Dr Lee", the Committee had questioned him at length about his treatment of a wide cross section of his patients and in particular the patients which were identified. It noted that it had categorised what it referred to as "the representative cases" discussed with Dr Lee under various headings eg addiction, asthma, depression, diabetes, domestic violence, etc. The Committee noted that it had reviewed files of 170 patients and discussed many of the patients with Dr Lee during the hearing. It stated it was of the view that the cases discussed with him were "representative of his general standard of practice and supported his ‘admission’ that the patient records were as a whole typical of the way he kept his records and dealt with patients during the Referral Period" (emphasis added). The Committee particularly noted its concern about the poor quality of the Doctor’s records, a lack of detail in the histories and the lack of documentation of reasons for arriving at a particular diagnosis. In some cases it said there was a lack of a recorded diagnosis. In paragraph [10] (of part D) the Committee said that Dr Lee agreed that the patient records the Committee looked at were as a whole typical of the way he kept his records and dealt with patients during the Referral Period. An appendix to the report contained detailed notes concerning particular patients arranged under the headings representing the categorisation of the representative cases.

‘7. The Committee reviewed files of 170 of Dr Lee’s patients and discussed many of these patients with him during the hearing, as well as studying computer records of his patients. The Committee was of the view that the cases discussed with Dr Lee were representative of his general standard of practice and supported his admission that the patient records were as a whole typical of the way he kept his records and dealt with patients during the Referral Period. Dr Lee’s management of patients with a range of conditions is summarised in Appendix 1.

8. Dr Lee showed one or more examples of inappropriate practice in each case about which he was questioned. The Committee considered that the management of his patients was inappropriate, not only because of lack of knowledge as a result of poor training in general practice and inadequate continuing medical education, but particularly because Dr Lee had not been able to provide an appropriate level of clinical input when consistently rendering such a high volume of services. In the Committee’s opinion Dr Lee’s conduct would be unacceptable to the general body of general practitioners.’

19 The Committee made some amendments to its draft report. It initially suspended its consideration because it suspected the Doctor had been fraudulent, but ultimately resumed consideration of the referral after the Commonwealth Director of Public Prosecutions ("the DPP") had determined not to prosecute Dr Lee. The DPP did so because it formed the view that there was no reasonable prospect of obtaining a conviction. The Committee presented its final report on 19 March 2001. It was unanimous in finding that the Doctor’s conduct, the subject of the referral, was unacceptable to the general body of general practitioners practising in general medical practice in Australia. The report took into account submissions which Dr Lee had made on 27 October 2000. Dr Lee was sent a copy of the report as required under s 106R of the Act.

S 106T then provides that at the end of the 14 day period and within 35 days after receiving the report, the Determining Officer is to make a final determination in accordance with s 106.

21 On 2 July 2001, Dr Morauta, purporting to be acting in her capacity as Determining Officer appointed in accordance with s 106Q, forwarded to Dr Lee a copy of her draft determination together with a statement of reasons and invited Dr Lee to make written submissions. On 27 July 2001 Dr Lee’s solicitors responded to the draft determination on his behalf. Among other things it was submitted that the Committee had made findings in relation to a number of patients which Dr Lee had not been given the opportunity to answer. The question of penalties was also addressed in the submissions.

22 A final determination was made on 5 November 2001 by Mr Maskell-Knight acting as Determining Officer. It seems that between the time of the draft determination and the final determination Dr Morauta had ceased to be Determining Office and had been replaced by Mr Maskell-Knight.

23 The content of the determination is dictated by s 106U. Section 106UA requires that copies of the final determination be given by the Determining Officer to the doctor. The final determination is, pursuant to s 106V of the Act, to take effect 28 days after that copy is provided.

24 On 4 December 2001 Dr Lee’s solicitors requested the Minister to refer Mr Maskell-Knight’s determination to a review tribunal for review. That request was made under s 114 of the Act and as required by subs (ii) of that section set out the grounds upon which the request was made.

25 It should be noted that the subject of the review is the determination made by the Determining Officer and not as such the Committee’s report. The Tribunal ("the Tribunal") is required by s 119 to review that determination, having regard to the grounds set out in the request to review and the documents that are forwarded by the Minister with the request. The Tribunal is required to take into account as well as address any submissions that may be made to the Tribunal during the proceedings or the review. For the reasons set out in the Tribunal’s decision, it set aside the determination made by Mr Maskell-Knight and instead made a new determination in effect reprimanding Dr Lee, recommending that he be counselled and reducing the period of disqualification to a period of 12 months from the time the determination took effect in respect of the provision of all services to which an item related in Group A1 of Part 3 of the General Medical Services Table and reduced to six months the period of full disqualification under s 106U(1)(h). It is from the Tribunal’s decision that Dr Lee now appeals to this Court under s 124A of the Act.

26 Counsel for Dr Lee relied upon what was said to involve three errors of law in the Tribunal’s decision. It should be noted that counsel relied, not only upon the statutory right to appeal conferred under s 124A, but in addition upon s 39B of the Judiciary Act 1903 (Cth) to submit that the Tribunal’s decision was vitiated by error.

(1) The final determination made by Mr Maskell-Knight was invalid because the Act required that the final determination be made by the same person whomade the draft determination provided for in s 160S of the Act. If the final determination of Mr Maskell-Knight was invalid then there was nothing for the Tribunal to review under the Act.

(2) The Committee’s report was flawed in the same way as the report of the Committee discussed by the Full Court of this Court in Adams v Yung (1998) 83 FCR 248 and like the report in Adams v Yung could accordingly not support the making of a valid determination as purported to have been made both by Mr Maskell-Knight and ultimately, on the review by the Tribunal.

(3) The procedure adopted by the Committee, which involved the preparation of a draft report for comment before the making of the final report, in the circumstances of this case constituted a denial to Dr Lee of procedural fairness. The submission, made also with regard to the proceedings in the Tribunal, was that the procedure involved a representation by the Committee that the concerns which it brought to Dr Lee’s attention about findings that were to be made, or which Dr Lee was entitled to make submissions on, were the sole matters of conduct with which the Committee was concerned. It was said to follow that the Committee was not entitled in its final report to make adverse findings different from those foreshadowed to Dr Lee in the draft report.

28 The submission proceeded on the basis that the procedure adopted gave rise to a legitimate expectation in Dr Lee that the particular criticism set out in the draft report would confine further consideration of the matter. However, it was further submitted that the Tribunal misconceived the requirements of procedural fairness in relation to its own consideration of the matter when it embarked on its own analysis of the evidence without confining the ambit of its review to the particular criticisms notified to Dr Lee in the Committee’s draft report. So it is submitted, that the Tribunal failed to foreshadow new criticisms which it proposed to rely upon by failing to formulate them, not allowing Dr Lee time to consider the new particulars and not reconvening the proceedings. The submission is made against the background that before the Tribunal, Dr Lee’s representative was confined to the opportunity to address the Tribunal with respect to evidentiary matters already collected by the Committee. Hence, the only real opportunity to make substantive responses to allegations made against him was to do so before the Committee had made its findings.

29 A number of examples of what was said to be the denial of procedural fairness were raised by counsel for Dr Lee in submissions. The Court requested counsel to prepare a detailed schedule setting out in each case how the matter was dealt with in the draft Committee report, how it was dealt with in the final Committee report and how ultimately the matter was dealt with by the Tribunal. Orders were made affording an opportunity for counsel for Mr Maskell-Knight to make submissions concerning the alleged failure on the part of the Committee or the Tribunal, as the case may be, to afford to Dr Lee procedural fairness.

30 The first submission raised is that, as a matter of interpretation of Division 5 of Part VAA of the Act, the person who as Determining Officer makes the final determination in accordance with s 106T of the Act must be the same person as makes the draft determination under s 160S of the Act, acting then also in the capacity as the Determining Officer. It is submitted that the legislative intention is that the function of making both the draft and final determinations is one that must be performed personally and by the same person. In consequence, it is submitted, the final determination was invalid and a fortiori there would be nothing for the Tribunal to review.

31 Section 106Q of the Act deals with the appointment of the Determining Officer. Qualification for appointment is the holding of an office or appointment under the Public Service Act 1922 (Cth). The contemplation which appears clearly from s 106Q(2) is that the instrument of appointment of the Determining Officer might refer not to a person by name but to a person as the holder "for the time being of a particular office or appointment". While s106Q is not determinative of the submission, the fact that an appointment might refer to a person holding a particular office "for the time being" rather suggests that there would be likely to be changes in the identity of the Determining Officer as changes occurred in the particular office specified in the appointment.

32 The question whether a function such as the making of a final determination is required to be carried out by the same person as carried out another function, for example the making of a draft report, must clearly be decided having regard not only to the nature of the relevant functions to be performed but also to the consequences of administrative convenience or inconvenience, as well as such implications as arise from the terms of the statute itself and its context.

33 The argument that both functions should be performed by the one person gains some support from the fact that the legislation contemplates that after the draft determination has been made, the final terms of the determination will take into account such written submissions as the person under review may make. So it can be said that what is involved in Division 5 is a process which commences with the making of a draft determination and proceeds thereafter through a decision making process where the Determining Officer reconsiders the draft in the light of any submissions that the doctor may make. It is submitted that the legislative intention was not that some person who did not make the draft determination be permitted to make the final determination.

34 A consequence of acceptance of this submission would be that any change in the Determining Officer after the presentation of a draft determination would require the whole process to begin again. It is difficult, however, to see that the legislation in fact envisages that the process recommence when regard is had to the specific time limits which are set out in the Division. So, for example, the Committee is required under s 106L to report to the Determining Officer, giving its findings as to whether the person under review has engaged in inappropriate practice. The Determining Officer is obliged under s 106R(1) to give a copy of the report to the person under review seven days after the Determining Officer has been given the Committee’s report under s 106L.

35 The Determining Officer is required to make a draft determination giving a copy of that draft to the person under review 14 days after receipt of the Committee’s report: s 106S(1)(b). The time limits for making submissions then run from the day on which the person under review receives the draft determination. Further, the final determination is required to be made by the Determining Officer within 35 days after that officer has received the Committee’s report.

36 It is specified that failure to comply with these time limits does not affect validity. However, the time limits appear to have been calculated on the premise that there is no break in them which could be brought about by changes in the office of Determining Officer. If the change in the Determining Officer had the consequence as submitted that there had to be a new draft determination following a change in the person appointed as Determining Officer, then it might be expected that the legislature would set alternative time limits in Division 5, capable of being complied with.

37 Put simply, Division 5 does not seem to contemplate that there could be more than one draft determination but rather that the draft determination is to be made once only and within 14 days after the Determining Officer receives the Committee’s report.

38 In summary, the question whether the Act requires both the power to make a draft determination and the power to make a final determination to be exercised by the same person, being the person who is the Determining Officer, must depend upon the nature of the power and all the circumstances of the case. Further in determining the answer to the question, regard may properly be taken of the practicalities of administration: cf the somewhat different contextual question of delegation of statutory powers, O’Reilly v Commissioners of the State Bank of Victoria [1982] HCA 74; (1983) 153 CLR 1 per Gibbs CJ, and the cases there referred to.

39 The first submission on behalf of Dr Lee should not, in our view, be accepted.

40 The second submission advanced on behalf of Dr Lee is that the Committee did not follow the decision of the Full Court of this Court in Adams v Yung, notwithstanding that it was bound to do so. For the purposes of considering this submission, it is necessary to see precisely what it was that was decided by the majority of the Full Court (Burchett and Hill JJ) in that case. The Committee examined the doctor’s records made on one day, 29 November 1994, and found the records contained inadequate summaries of treatments, various consultations being billed at a wrong rate and in many cases prescription of antibiotics where antibiotics were not indicated. No finding was made of inappropriate practice in relation to a particular identified patient or patients. No attempt was made as the law then permitted to undertake a sampling of services on which findings were based.

41 The majority emphasised the significance of the instrument of referral which provided the framework in which the Committee’s inquiries were to be held. The majority noted that the legislative scheme contemplated that there be an inquiry held into specified conduct referred to in the reference, rather than conduct at large. The function the Committee at the hearing was required to undertake was limited to considering the matters that were the subject of the referral. It was pointed out that if the Committee was charged with investigating whether appropriate care had been given to patients and the reference referred to the totality of services performed in a period it would, almost of necessity, be necessary to conduct some form of sampling procedure, whether or not the sampling procedure then enacted was used. As noted above, sample analysis had not been attempted. Rather, what had happened in that case was that the Committee had considered only the patients seen on a particular day in a twelve month period. The majority was of the view that the proceedings before the Committee had miscarried, particularly because the Committee had failed to confine itself to the reference which was before it, and had failed to consider the issue in that reference which raised the conduct of the doctor in respect of the referred services. Rather, all the Committee did was to consider the conduct of the doctor on the one day it chose.

42 The procedure adopted by the Committee here was substantially different from that adopted in Adams v Yung. It considered what it referred to as "a wide cross section of [Dr Lee’s] patients." It took into account what it referred to as "representative cases". Its report indicates that Dr Lee had agreed that the records looked at were "as a whole typical of the way he kept his records and dealt with his patients during the referral period". At paragraph [7] under the heading, "Findings", the Committee noted that it had reviewed files of some 170 patients which were discussed with Dr Lee during the hearing, as well as computer records. The Committee said, "the Committee was of the view that cases discussed with Dr Lee were representative of his general standard of practice and supported his admission that the patient records were as a whole typical of the way he kept his records and dealt with patients during the referral period." The report made findings on Dr Lee’s management in respect of the patients listed.

43 Adams v Yung was considered by von Doussa J in Retnaraja v Morauta [1999] FCA 80; (1999) 56 ALD 187. In that case von Doussa J noted that the referral related to all medical services rendered by the doctor in the referral period. His Honour noted that the findings made in the report did not purport to be findings in respect of every service actually performed during the referral period. At [55] his Honour said, after referring to a passage in the joint judgment in Adams v Yung, "I do not understand their Honours to mean that the ultimate conclusion of the Committee must relate the issue of conduct to individual services to identified patients. Such a requirement would be inconsistent with the sampling process provided for in ss 106G to 106K enacted by the 1993 Bill." Beaumont J in Adams v Yung also held that it was not necessary that the Committee’s report relate findings of inappropriate practice to specified services.

45 While it can be accepted, consistent with the submissions of counsel for Dr Lee, that the Tribunal was bound by the judgment of the Full Court of this Court in Adams v Yung, neither the procedure adopted by the Committee nor the procedure adopted by the Tribunal contravened what was said in Adams v Yung. The present case is simply distinguishable from what happened in Adams v Yung. The present is not a case where the Committee took as representative what had happened on one day in the referral period. It was a case where agreement had apparently been reached between the Committee and Dr Lee that certain cases, the records kept in them and the way Dr Lee dealt with patients in the referral period would be treated as representative or typical, both of the manner in which records were kept and the way Dr Lee dealt with patients in the whole referral period. Thus the Tribunal was able, in accordance with the referral made to it, to find that the conduct under review of Dr Lee in connection with the rendering of services to patients referred to in the report, being the subject of the referral from the Commission was, in its opinion, unacceptable to the general body of general practitioners practising in general medical practice in Australia. The second submission must accordingly be rejected.

46 It is not in dispute that a doctor whose conduct is under investigation by a Committee following a referral is entitled to be afforded procedural fairness. So much follows from the nature of the proceedings as well as from the decision of Davies J in Yung v Adams. How procedural fairness will be required to be afforded will depend upon the circumstances of the particular case. It is therefore not surprising, as counsel for the respondent pointed out, that the Court has not endorsed any particular procedure or procedures as the sole recommended means of according procedural fairness in proceedings of the present kind.

47 In general terms, the submission takes as its starting point the fact that the Committee had given to Dr Lee a draft of its report so as to apprise him of the adverse findings contemplated by the Committee to be made against him. It did this, "in order to ensure that you are fully appreciative of the concerns of the Committee". It did so, in other words, clearly to enable Dr Lee to meet the case against him which these draft adverse findings suggested. As already indicated, Dr Lee made submissions to the Committee. He disputed many of the specific findings made by it. He sought to refute the criticisms concerning his failure to record aspects of services performed by him by arguing that these matters were not relevant to the subject matter of the referral.

48 The Committee’s final report and the Tribunal’s ultimate determination, contained additional substantive criticisms not foreshadowed in the draft report of the Committee, or in the case of the Tribunal’s determination, not foreshadowed to him at any time prior to the Tribunal’s determination on the review. In his affidavit evidence Dr Lee claimed that it was his understanding so far as the Committee’s report was concerned, that he needed only to address the specific matters dealt with in the draft report. He said that he thus confined his responses to the Committee to such criticisms as were apparent from the draft report. He said that had the matters ultimately dealt with in the final report, but not foreshadowed in the draft report, been raised with him, he would have responded differently in his submission to the Committee, by providing a more extensive defence of his treatments of patients with supporting evidence. Some examples are given by him in his affidavit. Counsel for Dr Lee submitted that the procedure adopted by the Committee gave rise to a legitimate expectation that the particular criticisms set out in the draft report would confine the Committee’s further consideration of the matter. In other words, Dr Lee said he was led to believe that the specific criticisms were the only matters he had to address. He understood that the final report would not contain matters not dealt with in the draft report. Reference was made to Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 654-5, 659-60, 670-1; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 291-2, 303, 305, 311-312; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2002) 204 CLR 82 at 88, 116, 122, 153; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at 86, 102, 118; Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 at [61–3], [123], [194], [256-7], [302-309]. The Tribunal rejected this submission.

49 In Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 195 ALR 502, Gleeson CJ declined to accept legitimate expectation as a test to determine whether procedural fairness had been accorded on the facts of that case. His Honour pointed out that the question was not whether an expectation had been disappointed but whether procedural fairness had been afforded. McHugh and Gummow JJ expressed the law in Australia at [81-83]. McHugh J had said in his Honour’s dissenting judgment in Teoh:

50 The case for Dr Lee, although cast in terms of legitimate expectation, is not dependant upon that. It is common ground that if Dr Lee was denied procedural fairness at a relevant stage in the proceedings, then he would be entitled to succeed. However, it must be borne in mind that the content of the rules of procedural fairness, as well as whether procedural fairness is required, must be ascertained from the content of the legislation pursuant to which the challenged decision is made and as well, all the circumstances of the case: Kiao v West [1985] HCA 81; (1985) 159 CLR 550.

51 In Yung v Adams Davies J held, and with respect, correctly, that throughout the processes which led to the Tribunal’s decision on the review, the law required that procedural fairness be given to the doctor. Adequate notice had to be given of the findings which might be made and the doctor had to be given a fair opportunity to respond to them. At 458 his Honour said:

52 The Full Court in Adams v Yung held further that there was an obligation on the Tribunal, as well as on the Committee, to afford the doctor procedural fairness. Burchett and Hill JJ, however, were of the view that the proceedings before the Committee miscarried, not so much because the Tribunal had failed to particularise various matters or failed to indicate adverse conclusions (both of which in fact had happened), but because it had failed to confine itself to the reference before it.

53 In Health Insurance Commission v Grey [2002] FCA 265; (2002) 120 FCR 170 Beaumont, Sundberg and Allsop JJ at [173] summarised the cases decided to that time as follows:

54 As is pointed out by the respondent in his written submissions, this Court has not endorsed any particular procedure as the sole method whereby procedural fairness is to be afforded. Rather, what is adequate notice of the Committee’s or the Tribunal’s concerns, will need to be determined by reference to the circumstances of the case. As was said in Traill v McRae [2002] FCAFC 235; (2002) 122 FCR 349 at 380:

55 In considering the question of procedural fairness, it is important to bear in mind the legislative scheme which has already been set out and particularly, the division of responsibility between the Committee on the one hand, and the Tribunal on the other.

56 Briefly, it may be said that the Committee is an ad hoc body set up to consider the conduct which is referred to it and to make a finding, if appropriate, that the doctor under review has engaged in inappropriate practice in connection with the referred services. Its meetings must be held in private. It may hear evidence on oath and examine documents which are produced to it. Persons giving evidence may be compelled to answer questions put to them. The doctor, however, may refuse to answer where the answer might tend to incriminate him or her. The Committee is not bound by the rules of evidence and may inform itself in any way it thinks appropriate: s 106(2). The doctor has no right to representation before the Committee, although the doctor is entitled to be accompanied by a lawyer or other adviser. An adviser (not being a lawyer) may, like the doctor, question witnesses.

57 The Tribunal, on the other hand, will only be constituted where the Committee has made a finding of inappropriate practice and the Determining Officer has made a final determination relating to the person under review: s 106T. Before that final determination is made, the Determining Officer will have submitted to the doctor a draft determination and invited him or her to make written submissions suggesting changes to the draft. As has already been noted, the final determination is somewhat akin to the imposition of a penalty after a determination of liability (the finding of inappropriate practice) has been made.

58 It is the medical practitioner, the subject of the referral, who requests a review by the Tribunal: s 114. The subject matter of the Tribunal’s review is the determination made by the Determining Officer: s116. The review is to be carried out having regard to the grounds of review which the doctor formulates: s 114(2)(b). At the review, the doctor may appear in person or may be represented. The doctor or the representative has the opportunity to address the Tribunal (s 117) and the address is to be taken into account by the Tribunal. The Tribunal’s proceedings are to be conducted with a minimum of formality and technicality: s 118.

59 It may thus be thought that the Determining Officer and, in the event that the review procedure is instituted, the Tribunal on the review, is, under this procedure, required to proceed on the basis that the finding of inappropriate practice by the Committee has been made. However, this is accepted by the parties not to be the case as is at least implicit in the decision of the Full Court in Adams v Yung and of a Full Court of this Court in Health Insurance Commission v Grey. It would seem to follow from these cases that the Tribunal is not bound by the facts as found by the Committee. It may be entitled to draw inferences from facts before the Tribunal or conclude that the Tribunal made wrong findings of fact, subject, however, to the stricture that the Tribunal itself cannot hear evidence and so must reach its decision by reference to the material that was before the Committee. The function of the Tribunal is to affirm or to set aside the determination of the Determining Officer and, in the latter case, to make another determination: s 119. In exercising this function it would seem that the Tribunal would be entitled to set aside the determination on the basis that it did not accept either the factual basis upon which that determination is made or the conclusions which derive from that factual basis. However, this is, as already noted, subject to the fact that the Tribunal may only have regard to the submissions made to it and the documents referred to in s 115 (the reference, a transcript of the Committee’s hearings, any exhibits before the Committee, the Committee’s report and documents sent to the Minister with the report). The Tribunal cannot itself call or question witnesses so as thereby to reach a different conclusion from the Committee on different evidence.

60 One thing that must follow from the above analysis, however, is that whether or not the Tribunal is able to make factual findings that are inconsistent with those of the Committee, it could not take into account explanations that might be given by Dr Lee in answer to findings it might notify him it intended to make, if those explanations went beyond submissions and involved factual matters not before the Tribunal. In raising before us the matters he did which were said to involve the Tribunal denying to Dr Lee procedural fairness, counsel for the doctor relied on an affidavit by Dr Lee which suggested how Dr Lee might answer the matters said to have been found adversely to him by the Tribunal. A number of the explanations seem to involve factual matters which the Tribunal would not be permitted to take into account. However, it is sufficient to say here that if the Doctor was denied procedural fairness, it is unnecessary that he give explanations on oath of what he might have said to counter adverse findings. It suffices if the circumstances are such that the Doctor might have been able to counter the adverse findings had he been given the opportunity to do so.

61 It is necessary now to consider whether the Committee or the Tribunal, as the case may be, failed to afford Dr Lee procedural fairness at some step in the process leading up to the Tribunal setting aside the Determining Officer’s determination.

62 Before doing so, it is necessary to note a submission made by the respondent in answer to the various examples given by counsel for Dr Lee, which are said to involve the Tribunal denying to Dr Lee procedural fairness. It is submitted that the Tribunal expressly stated that it did not take into account any concerns additional to those referred to by the Committee when reaching its conclusions. So it is said that even if the Tribunal did make findings adverse to Dr Lee without giving the Doctor the opportunity to respond to those findings, to the extent that these findings were not matters which the Committee took into account, a fortiori they were not findings taken into account by the Tribunal. Hence, it is said to follow that the decision of the Tribunal should not be set aside because any denial of procedural fairness could not have affected the result.

63 The relevant passage in the Tribunal’s reasons is to be found at [113] and follows an examination by the Tribunal of the treatment of various patients, which examination included all the examples said by counsel for the Doctor to be findings made by the Tribunal which involve a denial of procedural fairness. The Tribunal said at [113]:

64 It seems that the Tribunal in this paragraph is acknowledging that its discussion in the preceding paragraphs does go outside matters which were the subject of detailed questioning by the Committee, questioning which, presumably, afforded the Doctor the opportunity of putting his views, but then seeks to make clear that the "concerns" the Tribunal has raised have not been taken into account. This procedure leaves us with some unease. It can be said that once a Tribunal has made adverse findings or indicated concerns which are adverse, it may be difficult indeed for the Tribunal to put these findings or concerns out of its mind. It is preferable that Tribunals refrain from making adverse findings which a doctor has not had the opportunity to counter, rather than making them but then saying that these matters are not to be taken into account. This having been said, however, there is no real reason to believe that the Tribunal has taken these "concerns" into account when it says it did not. The more difficult question is whether the examples referred to by counsel for Dr Lee are examples of the "concerns" of which the Tribunal speaks, or whether they are not. This is a matter which needs to be considered example by example.

65 The first example raised on behalf of Dr Lee relates to [86] of the Tribunal’s reasons, a paragraph appearing with other material under the heading: Patient 1. The paragraph reads as follows:

66 The paragraph which is the subject of complaint must be seen in the context of the preceding paragraph. In it the Tribunal said:

67 These comments were made in answer to a submission on behalf of Dr Lee that he had been denied procedural fairness by the Committee. The Tribunal said that Dr Lee had been made aware of the concerns entertained by the Commission and also that the Committee would be examining the medical records of specified patients, including Patient 1. Dr Lee had also been made aware, the Tribunal said, of the Committee’s concerns that Dr Lee had, in respect of the nominated patients, concentrated on presenting symptoms without engaging in "whole patient care".

68 There was reference in the draft report to Patient 1 under the heading "domestic violence" (it appears to be the same patient). The patient records make it clear that there was no referral of the patient for counselling or otherwise. Indeed, the records contain no note of any advice given by Dr Lee at all. They indicate physical and verbal abuse by the husband, the patient’s desire for a separation, that the husband was living with another woman and matters of that kind.

69 The Committee had, it must be said, advised Dr Lee of the general concerns it had concerning his conduct under review. The first time the Tribunal did this was at the end of the first hearing day when the Chair of the Committee said:

70 The Chair of the Committee repeated the generalised concerns raised at the end of the first hearing day at the commencement of the second day in more or less identical terms. Ultimately the Committee found inappropriate conduct, inter alia, on the basis that Dr Lee had concentrated on the presenting symptoms, rather than on "whole patient care."

71 The finding that tests and referrals in respect of the particular patient should have been initiated by Dr Lee does not appear directly in the Committee’s draft report or its final report, nor was it raised in the course of argument before the Committee. It may also be said that it was not specifically raised before the Tribunal either, although the context of the way it was raised in the Tribunal may be said to be no more than as an example of the generalised matter of complaint that Dr Lee had not engaged in "whole patient care."

72 While it may be said, therefore, that Dr Lee was on notice of the general matter of concern, that is to say, the lack of whole patient care as illustrated in the patient records which the Committee selected, it is clear that he was not made aware of the Tribunal’s concern regarding Dr Lee’s treatment of this particular patient.

73 The question then is whether, given the generalised concern raised by the Committee, there was a breach of procedural fairness by the Tribunal in concluding, presumably from Dr Lee’s own (and inadequate as the Tribunal found) records, that for the proper course of treatment of this patient, that is to say treatment which would reflect "appropriate practice", there would have been a need to refer the patient for tests and referrals.

74 We have reached the conclusion that the Tribunal’s comment to which the complaint is raised is not as such a finding made by it on a matter on which Dr Lee had no opportunity to comment, but rather an explanation by the Tribunal in support of the Committee’s finding that Dr Lee’s treatment was inappropriate because he had regard only to symptoms without engaging in whole patient care. Dr Lee could not before the Tribunal, give evidence about his treatment of this patient to add to the matters which appeared in the patient records. Such evidence as there was before the Tribunal consisted only of the inadequate records which made it clear that there was no referral or test ordered in respect of the patient. What the Tribunal in the passage complained of is really doing is to use the lack of referral (a matter clear from the doctor’s own records) to support the Committee’s finding, as to which Dr Lee was given the opportunity to comment, that "the outcome for the patient is that only the presenting problem or symptom is addressed in a rapid consultation and no effort is made to engage in whole patient care." In our view there was thus no denial of natural justice in this example. If there was, however, it seems to us that the matter must then be covered by the Tribunal’s disclaimer in [113] of its reasons.

75 The second example comes from [91] of the Tribunal’s reasons where the Tribunal said:

76 The Tribunal then noted that the purpose of injection was to overcome insomnia due to anxiety and depression and, because the injection had effect only for a short period (presumably because it was given intramuscularly), the injections were administered at the end of the day. The Tribunal then lists the consultations recorded by Dr Lee (there were 15 of them) and notes that two of the services were charged at Level D. The Tribunal said of these:

77 A further 9 consultations were, the Tribunal said, charged as Level D. The Tribunal continued:

78 The Committee in its draft report dealing with Patient 2 (it would seem this was the same person as the Tribunal referred to as "Patient 2"), noted that she had been treated for insomnia with intramuscular injections and, that the use of Largactil in this way was inappropriate. Dr Lee addressed the comment in the draft report by saying that the "rationale for the use of Largactil ... initially was to reduce the agitation and anxiety." The submission notes that Largactil was then found to be effective for her sleep difficulties and it reduced the need for the use of benzodiazepines. The submission concluded with the words:

79 In the course of its hearing, the Committee discussed with Dr Lee the case of Patient 2. Dr Lee noted that the patient was depressed and was unable to sleep because of her anxiety and depression. He said that Largactil was given to the patient to enable her to sleep. Dr Virant, a member of the Committee, then said to Dr Lee that given as an injection Largactil would only work for a short time. He suggested to Dr Lee that oral administration would be preferable and sought his response. There followed a long answer that is difficult to follow but the substance of it seems to be that Dr Lee was of the view that his purpose in giving injections was so that the Largactil only worked a short time. Ultimately Dr Lee pointed out that injections were the traditional treatment in Korea and that some of his patients liked injections. Dr Lee said that the patient had only had about two injections in a month. Dr Wong, another member, noted that it would not be normal in China or Korea to give Largactil twice a month for sleeping difficulties.

80 In its final report, the Committee noted that Dr Lee had been asked "in detailed questioning" why the patient needed intramuscular injections, rather than Largactil being prescribed in tablet form. Dr Lee had responded that the traditional method of treatment in Korea was by injection. The Committee noted that it had put to Dr Lee that it was not normal practice, even in China or Korea, to give Largactil twice a month for sleeping difficulties. The final report also concluded that it was inappropriate for the Doctor to prescribe Prozac rather than a tricyclic antidepressant.

81 Before the Tribunal, counsel for Dr Lee had raised what was said to be a denial of natural justice in that the Committee had criticised Dr Lee’s treatment of the use of Prozac, rather than a tricyclic antidepressant, to treat the patient’s depression. This and other passages in the transcript are a little difficult to follow, a problem brought about because the Committee had confused the names of various patients. However, it is clear that the draft Committee’s report raised this as a matter of concern. It is likewise clear that the Tribunal did not make any adverse finding against the Doctor concerning his prescription of Prozac.

82 The complaint now is that there was no suggestion made by the Tribunal that Largactil should be given orally and that in any event, there was no suggestion until the time of the Tribunal’s decision, that there was insufficient clinical input to justify Dr Lee charging at Level D.

83 It seems quite clear that Dr Lee was given the opportunity of dealing with the question of the mode of administration of Largactil by tablet and was not denied procedural fairness by the Tribunal in reaching its conclusion. It is equally clear that the first reference to the justification for charging two consultations at Level D was the report of the Tribunal itself. The question, therefore, is whether Dr Lee was denied natural justice by the Tribunal making this finding in circumstances where he was not given the opportunity to deal with it.

84 Again, one must see this finding in its context. Right from the outset it was clear that an issue in the proceedings was the adequacy of the record keeping of Dr Lee. But it was also clear, certainly by the time the Committee prepared its draft report and submitted it to Dr Lee for comment, that an issue in the case in respect of particular patients, including Patient 2, was whether Dr Lee’s level of clinical input was satisfactory for services he rendered and which were the subject of Medicare claims. The Committee, in both its draft report and final report, expressed its findings (at [6] in Part D) to be as follows:

86 Dr Lee was thus made aware by the Committee that it proposed to find the level of clinical input unsatisfactory in respect of the services Dr Lee rendered to Mrs An. Dr Lee appears not to have responded to that and accordingly, the Committee proceeded to make the finding it had proposed. All the Tribunal did in its review of the Committee’s findings is to spell out that the medical records supported the finding which the Committee made. By the time of the Tribunal’s hearing this was clearly an issue and Dr Lee had an opportunity to deal with it before the Tribunal. The fact that he chose not to is immaterial. The Tribunal did not deny him natural justice.

87 Again, if we are wrong, it seems that the Tribunal’s disclaimer in [113] has the consequence that the breach of procedural fairness did not affect the outcome.

88 The third example is the finding made by the Tribunal at [75] concerning the case of Patient 3, an asthmatic. In that paragraph the Tribunal said:

89 It is submitted that this paragraph should be read as an adverse conclusion by the Tribunal that Dr Lee did not adequately inform the patient’s family of a management plan nor appreciate that he should have done so. This may be accepted.

90 It is said that nowhere prior to the Tribunal’s report is there to be found any suggestion that Dr Lee should have informed the patient’s family of a management plan. There had been criticisms of Dr Lee’s records and other matters.

91 The submission is, as counsel for the respondent points out, at least incomplete. First it must be noted that at the very outset of the proceedings the Committee made it clear to Dr Lee that one of the issues of concern was the doctor’s "failure to follow standard protocols for the management of conditions such as diabetes and asthma." The standard protocol for management of asthma was a written management plan. The Committee in its draft report was critical of the fact that there was no management plan recorded. Under the heading "Asthma" the Committee wrote:

93 In the course of argument in the Tribunal, counsel for the respondent referred to the case of Mr Lee as "simply a case which was cited as an aspect of lack of asthma management plans."

94 It seems to have been clear to Dr Lee that an element of criticism in respect of this patient was that he had not set in place any asthma management plan. Obviously, if there was no such plan the Doctor could not have informed the patient’s family of any such plan. It seems to follow that there can have been no failure on the part of the Tribunal, and a fortiori on the part of the Committee, to afford Dr Lee natural justice. He was adequately made aware that this was a matter that was under investigation by the Committee.

95 The fourth example relates to [68] of the Tribunal’s reasons. In that paragraph, which related to the patient Patient 4, the Tribunal said:

96 At the end of the first day of its hearing the Committee made it clear to Dr Lee that one matter of concern was a possible lack of knowledge of drug prescribing, particularly in relation to drugs of addiction. It was clear that the records to be examined raised two cases concerning addiction, one of which was this patient. Hence Dr Lee was aware that his prescribing drugs to this patient was an issue of concern to the Committee. The Committee in its questioning was made aware by the Doctor that it was Dr Lee who had commenced prescribing a narcotic "Endone" to this patient having "worked up" from non narcotic analgesia. He also prescribed Rohypnol for pain relief and sleeping. Dr Lee expressed the view that the patient was not a drug addict. He admitted knowing that both Endone and Rohypnol had "addictive potential." Dr Virant suggested to the Doctor that the patient should be registered so that there was control over the quantity and quality of drugs. It was suggested by the chairman that "Endone" was an inappropriate drug for pain treatment. The patient was on Endone for four years.

97 The Committee, in its final report, made it clear that it was concerned with the quantity of drugs of addiction prescribed. The Committee believed that the repeated prescription of narcotic drugs was inappropriate. It criticised the records relating to this patient, and to the extent that it accepted that the Doctor had no knowledge of the requirements for the prescription of long term narcotic drugs, (there was evidence that this had been brought to his attention) regarded this too as inappropriate for a general practitioner treating patients. It did not suggest that the patient was addicted, although it is difficult to resist the conclusion that after receiving Endone, which is said to be addictive, for four years, the patient would have been highly likely to have become addicted.

98 Although on behalf of Dr Lee it was submitted that the Tribunal’s finding was that Dr Lee had brought about the patient’s addiction, the Tribunal did not go so far as to say that this is what happened. Indeed that is but one of a number of possible conclusions that could be drawn from the Tribunal’s reasons. What is clear, however, is that there was considerable discussion before the Tribunal on the question whether the patient was addicted and whether he should not have been prescribed these drugs in which Dr Lee had the opportunity, should he have chosen to do so, to put any matter which he wished to on the question of whether the patient was addicted. He did not do so. In our view he was not denied natural justice. To the extent we are wrong, we think the Tribunal’s disclaimer in [113] has the consequence that the denial had no impact on the Tribunal’s decision.

99 The fifth example relates to [77] of the Tribunal’s reasons and to a patient "Patient 5". The Tribunal said:

100 The Committee’s draft report noted that there was no record of any peak respiratory flow readings or management plan at all. Dr Lee had the opportunity to put any evidence before the Committee that he had prepared a management plan. As earlier noted, the failure to do so was a matter Dr Lee had been advised was of concern to the Committee. The Tribunal merely repeated in other words the Committee’s draft report conclusion that there was no management plan. There was no denial of procedural fairness to Dr Lee. The Committee’s concerns were not, as the Committee made clear to the Doctor, limited to a failure to keep records. They extended to the failure to follow protocols, of which the example given to him was an asthma management plan.

101 The submission is directed at [83] of the Tribunal’s report concerning the patient "Patient 6". The Tribunal said:

102 The complaint is that in this paragraph the Tribunal extended what was said to be a fault in relation to the Doctor’s record keeping to a positive finding of inappropriate patient treatment.

103 First it must be repeated that the Committee’s concerns extended beyond record keeping failures as was at the outset of its enquiry made clear to the Doctor. Particularly, it extended to his lack of satisfactory management of psychiatric patients and his lack of satisfactory counselling skills.

104 At the Committee’s hearing it emerged that the patient had been depressed. At some time she was seen by a locum who had suggested the possibility of the patient committing suicide. The records made it clear that the Doctor had not referred the patient to a psychiatrist nor undertaken any counselling. The Doctor said that details had been left out because he knew the patient well.

105 In its draft report the Committee referred to the inadequacy of the Doctor’s notes. Reference was made particularly to the contrast between the Doctor’s notes and those of the locum. It is said there is no mention made of why the patient thought of suicide or any description of counselling given. Reflecting the discussion with the Doctor, the Committee noted Dr Lee’s explanation that he had not referred the patient to a psychiatrist because of a language difficulty, despite the fact that the patient had attended High School in Australia. The Committee then noted an alternative explanation that the Doctor had not referred the patient to a psychiatrist because of a "cultural taboo." Finally the Committee noted that the Doctor had then said that he had suggested a psychiatric consultation but that this had not been documented.

106 In its final report the Committee added the comment that it viewed Dr Lee’s behaviour in managing the patient to be inappropriate. It made no finding directly as to whether counselling had occurred, although it was noted that no description of any counselling appeared in the Doctor’s notes.

107 The Tribunal was clearly entitled to conclude, based on the records, that Dr Lee had not referred the patient to a psychiatrist and that he had not personally given to her any counselling. It is difficult, therefore, to conclude that he was in any way denied procedural fairness. The Tribunal was not entitled to go outside the material which had been before the Committee which in this case consisted of the medical records and the proceedings before the Tribunal. If this conclusion is not correct we think that [113] of the Tribunal’s reasons brings about the conclusion that any suggested breach of procedural fairness could not have affected the Tribunal’s conclusions.

108 The final example refers to [62] of the Tribunal’s reasons and concerns a patient "Patient 7". The paragraph reads as follows:

109 The Committee, in its draft report, noted that it had questioned Dr Lee about his management of the patient who had problems with Temazepam abuse. It concluded that Dr Lee had made no mention of this diagnosis, although he had prescribed this drug to her repeatedly. In its final report the Committee added to its finding that the patient had problems with Temazepam abuse but had been prescribed Temazepam repeatedly, a finding that the prescription of Temazepam to this patient was inappropriate behaviour. Dr Lee was given the opportunity of dealing with the findings that the patient abused the drug and that she was nevertheless prescribed the drug repeatedly. The conclusion, which inexorably follows from these findings, that the prescription of the drug was inappropriate behaviour, was not one which the Tribunal was required to put to Dr Lee separately. In our view Dr Lee was not denied procedural fairness here. If, contrary to our view there was a denial of procedural fairness, the disclaimer in [113] of the Tribunal’s reasons brought about the consequence that it could not be shown that the failure to give procedural fairness affected the outcome.

110 No denial of natural justice occurred as a result of the processes adopted before the Committee. It raised with Dr Lee its concerns about his conduct and supplied him with a draft report. Dr Lee responded to that draft report but complained that it contained matters upon which he had received no prior opportunity to comment. The Tribunal explained at [52] to [55] of its decision why this complaint lacked merit. For the reasons there given, we agree with the Tribunal that Dr Lee was made aware during the hearing before the Committee of all the matters the subject of its report.

111 In our view none of the submissions made on behalf of Dr Lee can be accepted. The application must accordingly be dismissed. We would affirm the decision of the Tribunal and order Dr Lee to pay the respondent’s costs of the application.

I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill and Marshall.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 552 of 2003

BETWEEN:	DR IL SONG LEE Applicant
AND:	CHARLES MASKELL-KNIGHT Respondent

JUDGES:	HILL, MARSHALL & FINKELSTEIN JJ
DATE:	7 APRIL 2004
PLACE:	SYDNEY

112 Hill and Marshall JJ have identified the issues in this case and the circumstances from which those issues arise. I respectfully agree in their conclusion that the Professional Services Review Committee complied with the obligations laid down in Adams v Young (1998) 83 FCR 248. I also agree in their conclusion that the applicant is not entitled to have set aside the Committee’s decision on the ground that he was denied procedural fairness. I, however, have different reasons for reaching that conclusion. It seems to me that the Committee probably made findings against the applicant without providing him with notice that this could occur. While the Determining Officer was not prepared to hold that there had been a denial of natural justice, he acknowledged that this could have occurred and for that reason reduced the periods of the applicant’s disqualification by six months and three months respectively. The Determining Officer would not have taken that course if he did not think that there was a real possibility that the applicant had been treated unfairly. This notwithstanding I would deny the applicant relief because he has waived his right to complain. He has waived this right first by addressing submissions to the Determining Officer and second by taking his case to the Professional Services Review Tribunal instead of coming directly to the court. On the other hand, I regret to say, that I am unable to agree with Hill and Marshall JJ on the remaining issues.

113 Part VAA of the Health Insurance Act 1973 (Cth) (which was substantially amended by Act No 95 of 1999) established a scheme whereby a practitioner’s conduct (defined to include a medical practitioner) could be examined to determine whether the practitioner had engaged in "inappropriate practice"; that is whether, in relation to rendering or initiating services in respect of which a medicare benefit was payable, the practitioner’s conduct would be unacceptable to the general body of practitioners in his field: ss 80-82. It also made provision for action to be taken in consequence of a finding of inappropriate practice.

114 The scheme operated in the following way. The Health Insurance Commission could refer to the Director of Professional Services Review the question whether a practitioner had engaged in inappropriate practice: s 86. If the Director thought there were sufficient grounds on which a Professional Services Review Committee could reasonably find that the practitioner had engaged in inappropriate practice the Director was required to set up a Committee to consider that question: s 93. The Committee would hold a hearing at which evidence would be given and documents produced: s 101(1). The practitioner under review was entitled to attend the hearing accompanied (but not represented) by a lawyer or adviser: s 103(1). The Committee’s only function was to determine whether, in its opinion, the practitioner had engaged in inappropriate practice: s 93. The Committee was required to set out its findings in a written report which was given to the Determining Officer: s 106L. The role of the Determining Officer was to decide what action should be taken to protect the medicare system from abuse. In particular, the Determining Officer was required to make a determination pursuant to s 106T that one or more of the directions set out in s 106U should be made. Those directions included the following: that the practitioner be reprimanded, counselled or required to repay to the Commonwealth certain medicare benefits that he had received. The practitioner could also be disqualified from providing specified services, providing services to a specified class of patients, providing services within a specified location or be fully disqualified from practising.

115 A practitioner dissatisfied with a determination was entitled to have the determination referred to the Professional Services Review Tribunal for review: s 114. In the proceeding before the tribunal the practitioner was entitled to appear in person or be represented: s 117(1). The Determining Officer could also be represented: s 117(3). Any party dissatisfied with the tribunal’s decision could appeal to the Federal Court "on a question of law only": s 124A.

116 There are several aspects of the Determining Officer’s role that should be explained in more detail. First, the Committee’s report was the only information that was provided to the Determining Officer to enable him to perform his duties following a finding of inappropriate practice. If the Committee’s report contained a finding that the practitioner under review had engaged in inappropriate practice the Determining Officer was required to make a draft determination setting out the directions he proposed to make: s 106S(1)(a). The draft determination was to be provided to the practitioner (s 106S(1)(b)) with a statement that the practitioner may "make written submissions...suggesting changes to the draft determination": s 106S(2). The submissions were to be made within 14 days: s 106S(2). At the end of that period, and in any event within 35 days after receiving the Committee’s report, the Determining Officer was required to make his final determination under s 106T.

117 There are two features of the Determining Officer’s role that should be emphasised. The first is that his determination under s 106T was a discretionary decision. By "discretionary" I mean a decision which requires the decision-maker to (1) determine the relevant factors that are to be taken into account; (2) assess the importance of each factor having regarding to the overall circumstances of the case; and (3) based on that assessment, choose between more than one possible course of action. Put another way, a discretionary decision is one where the law does not indicate the outcome: the decision-maker is given a choice of options. The degree of choice may, more or less, be confined in the grant of the power. But in each case the decision-maker is required, subject to the observance of some general obligations (for example, to correctly state the law, to act fairly and so on), to make a choice according to his own judgment and conscience, uncontrolled by the judgment or conscience of any other person. Inherent in the very nature of a discretionary decision, therefore, are the following features: (1) the factors influencing the decision may be many and varied; and (2) there is always room for legitimate differences of opinion as to what the answer should be or, as Mason and Deane JJ said in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518, "no particular opinion [is] uniquely right".

118 Returning to the role of the Determining Officer, the legislation provided for a two-step process. First, the Determining Officer was to form a preliminary view of the determination he would make having regard to the circumstances of the particular case. The facts upon which the preliminary determination was based were those stated in the Committee’s report. The second step was for the Determining Officer to reach a final view on what directions should be given after considering any submissions received from the practitioner. The purpose of the second step was to afford the practitioner the opportunity of attempting to persuade the Determining Officer that he should change his mind. This would require the practitioner to determine (1) the factors that informed the Determining Officer’s preliminary view (which he would have taken from the draft determination) and (2) how those factors can best be addressed to get the Determining Officer to arrive at a different conclusion.

119 In almost all cases the two-stage process was undertaken by one Determining Officer. In this case, however, the functions were split between two Determining Officers. This raises the question whether the legislation contemplated such a course. That is the question to which I now turn.

120 The first observation to make is that the process will be different according to whether it is undertaken by one Determining Officer or split between two Determining Officers. To begin with, the second Determining Officer will know nothing of the facts and therefore is not in a position to carry out the second step. I suppose that the second Determining Officer could proceed in one of two ways. He could read the Committee’s report and form his own preliminary view of the appropriate directions to be made under s 106U, read and take into account any submissions received from the practitioner and then make the final determination. If he takes this course there would be a real risk that the practitioner’s submissions would be of no use because they probably would not deal with the second Determining Officer’s concerns. This would inevitably be the case when, as here, the second Determining Officer formed a view about the facts which was different from the view taken by the first Determining Officer.

121 The second approach would involve the second Determining Officer attempting to place himself in the shoes of the first Determining Officer so that he might treat the preliminary determination as his own. However, given the individual and subjective nature of discretionary decision-making, it is difficult to see how such a task could be undertaken. The second Determining Officer could never place himself in a situation where he can identify and give precisely the same weight to the same factors which weighed on the mind of the first Determining Officer. Nor can he form exactly the same judgment as that which led the first Determining Officer to make his preliminary determination. Moreover, if we consider the different ways in which the second Determining Officer might deal with submissions received from a practitioner, the potential for divergence is even greater. In reality, a practitioner seeking to persuade the second Determining Officer to change a draft determination faces a similar task as an appellant seeking to have a discretionary judgment overturned.

122 In my opinion Parliament did not intend to establish two different regimes for making a determination on the "penalty" to be imposed on a practitioner who has engaged in inappropriate practice. The possibility that the Determining Officer’s functions would be split between two people was simply not contemplated by Parliament and is inconsistent with the structure of the relevant provisions. In my view the Determining Officer who made the preliminary decision was also required to make the final determination. In those rare cases where this is not possible the process must begin afresh.

123 The other issue on which I differ from Hill and Marshall JJ concerns the applicant’s complaint that the tribunal acted unfairly. The particular complaint is that the tribunal made findings adverse to the applicant but did not give him notice of those findings or an opportunity to address the tribunal before it reached its final decision.

124 As Hill and Marshall JJ point out the application was conducted on the assumption that it was permissible for the tribunal to review the evidence before the Committee and make its own findings on that evidence, even if its findings differed from those of the Committee. The correctness of this approach is not self-evident. The tribunal’s only function was to review the decision of the Determining Officer. This is the only reason why the tribunal was provided with the reference that gave rise to the determination, the transcript of the proceeding before the Committee and copies of the exhibits tendered before the Committee: s 115(1). Whether the tribunal was entitled to consider this material and form its own view as regards (1) the extent to which the practitioner engaged in the appropriate practice; and (2) the appropriateness of the sanctions imposed is, in my view, a matter of serious doubt.

125 My present concern is to determine whether there is a reviewable error of law when a decision-maker makes an adverse finding of fact on a point of some significance and does not give notice of that finding to the person affected by the decision because the decision-maker says (and believes) that he will not take the adverse finding into account.

126 In my opinion the principle to be applied is this. If there is a real or substantial risk that the adverse finding has influenced the decision-maker then the party affected has not been treated fairly and is entitled to have the decision set aside.

127 The area of law which, by analogy, provides a foundation for this conclusion is that of contempt. Everyone is familiar with the newspaper cases in which it is alleged that a particular publication has a tendency or is calculated to influence the judge. The rule of law which forms the backdrop to these decisions is that the due administration of justice requires that a citizen should be able to rely upon a "decision ... based upon those facts only that have been proved in evidence adduced before [the judge] in accordance with the [appropriate] procedure": Attorney-General v Times Newspapers Ltd [1974] AC 273, 309.

128 The issue raised in the newspaper cases is whether the publication has a capacity to influence the judge. As Mason J pointed out in Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation [1982] HCA 31; (1982) 152 CLR 25 at 100-103, it is an issue on which judges are keenly divided. There is one line of reasoning which holds that while a judge will not consciously allow himself to be influenced by what he might read outside court, when all is said and done he is as susceptible to influence as any other human being. The judge’s training may enable him to resist that influence in many instances, but he is not infallible. The other school of thought, exemplified most forcefully by Lord Salmon in Attorney-General v British Broadcasting Corporation [1981] AC 303, 342-343 teaches that no judge would allow himself to be influenced by what is said by the media because, "[i]f he were, he would not be fit to be a judge".

129 This case is a little different from the contempt cases. First, we are not dealing with a tribunal constituted by lawyers who, by their training, may be able to resist external influences. With the exception of the President, the members of the tribunal were medical practitioners. They may have had some experience in decision-making. They did not, however, have any of the formal training that lawyers have (for what that may be worth). Secondly, the tribunal was apparently influenced by its view of the facts given that it made adverse findings about the applicant’s conduct. The only issue is whether those findings may have influenced the outcome or whether, as the tribunal asserted, they were safely ignored.

130 I am in no doubt that there is a real risk that the tribunal was influenced by its (possibly impermissible) findings. I do not mean to suggest that the tribunal’s disavowal should be regarded as a fig leaf. Far from it. I am concerned of the real possibility that those findings had a subconscious effect on the tribunal’s decision-making . It is difficult to see how the findings do not create that risk. The findings were highly critical of the applicant’s conduct as a medical practitioner. They included the conclusions that Dr Lee "did not provide the appropriate level of clinical input required to manage [a] patient’s condition", that one of his patients became addicted to the drugs prescribed by him, that he did not initiate certain tests and referrals that ought to have been initiated, that his clinical notes were seriously inadequate and that some of his consultations were charged at levels not justified in the circumstances. The applicant is entitled to have his case decided without the risk of these findings affecting the outcome.

131 For the foregoing reasons I would set aside the decisions of the tribunal and Determining Officer and require the Committee’s findings to be returned to the Determining Officer for reconsideration.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Counsel for the Applicant:	M Smith

Solicitor for the Applicant:	Tress Cocks & Maddox

Counsel for the Respondent:	F Hampel SC with R Henderson

Solicitor for the Respondent:	Minter Ellison

Date of Hearing:	24 November 2003

Date of Judgment:	7 April 2004

(a)	make a draft determination in accordance with section 106U relating to the person under review; and
(b)	within 14 days after receiving the report, give copies of the draft determination to the person under review and to the Director.

Federal Court of Australia - Full Court Decisions

Lee v Maskell-Knight [2004] FCAFC 2 (7 April 2004)