Lee v Grigor [2005] FCAFC 198 (16 September 2005)

Last Updated: 16 September 2005

FEDERAL COURT OF AUSTRALIA

Lee v Grigor [2005] FCAFC 198

ADMINISTRATIVE LAW – Health insurance – Investigation by Professional Services Review Committee as to whether a medical practitioner has engaged in inappropriate practice in relation to the number of services rendered or initiated by him – Meaning of ‘exceptional circumstances’ – Whether matter should be remitted to a different Committee.




Health Insurance Act 1973 (Cth) s 106KA(2)

Health Insurance (Professional Services Review) Regulations 1999 (Cth) regs 10, 11





Oreb v Willcock [2005] FCAFC 196

Lee v Grigor [2005] FCA 25







IL SONG LEE v WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292, THE DETERMINING AUTHORITY established by s 106Q of the Health Insurance Act 1973 (Cth), HEALTH INSURANCE COMMISSION, ALAN JOHN HOLMES in his capacity as Director, Professional Services Review, BERNARD RAYMOND KELLY in his capacity
as Acting Director, Professional Services Review

NSD 303 of 2005




BLACK CJ, WILCOX and LANDER JJ
16 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 303 of 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	IL SONG LEE APPELLANT
AND:	WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292 FIRST RESPONDENT THE DETERMINING AUTHORITY established by section 106Q of the Health Insurance Act 1973 (Cth) SECOND RESPONDENT HEALTH INSURANCE COMMISSION THIRD RESPONDENT ALAN JOHN HOLMES in his capacity as Director, Professional Services Review FOURTH RESPONDENT BERNARD RAYMOND KELLY in his capacity as Acting Director, Professional Services Review FIFTH RESPONDENT
JUDGES:	BLACK CJ, WILCOX AND LANDER JJ
DATE OF ORDER:	16 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The cross-appeal be allowed.
2. Paragraph 2 of the orders made by Jacobson on 7 February 2005 be set aside.
3. The orders made on 29 April 2005 be set aside.
4. The matter be remitted to the first respondents/cross-appellants to determine Adjudicative Referral No. 292 according to law.
5. The question of costs be reserved.
6. Liberty to the parties to apply for an order for costs in accordance with the directions in Lander J’s reasons.

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	NSD 303 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

IL SONG LEE APPELLANT

AND:

WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292 FIRST RESPONDENTS THE DETERMINING AUTHORITY established by section 106Q of the Health Insurance Act 1973 (Cth) SECOND RESPONDENT HEALTH INSURANCE COMMISSION THIRD RESPONDENT ALAN JOHN HOLMES in his capacity as Director, Professional Services Review FOURTH RESPONDENT BERNARD RAYMOND KELLY in his capacity as Acting Director, Professional Services Review FIFTH RESPONDENT

JUDGES:	BLACK CJ, WILCOX AND LANDER JJ
DATE:	16 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BLACK CJ:

1 Subject to the qualification about the interpretation of reg 11(b) of the Health Insurance (Professional Services Review) Regulations 1999 expressed in my joint reasons with Wilcox J in Oreb v Willcock [2005] FCAFC 196, I agree with the reasons of Lander J and the orders he proposes.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.

Associate:

Dated: 16 September 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 303 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

IL SONG LEE APPELLANT

AND:

WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292 FIRST RESPONDENTS THE DETERMINING AUTHORITY established by section 106Q of the Health Insurance Act 1973 (Cth) SECOND RESPONDENT HEALTH INSURANCE COMMISSION THIRD RESPONDENT ALAN JOHN HOLMES in his capacity as Director of Professional Services Review FOURTH RESPONDENT BERNARD RAYMOND KELLY in his capacity as Acting Director, Professional Services Review FIFTH RESPONDENT

JUDGES:	BLACK CJ, WILCOX AND LANDER JJ
DATE:	16 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

2 The facts of this case are recounted by Lander J. I need not repeat what his Honour has written, nor the comments in Oreb v Willcock [2005] FCAFC 196 concerning the relationship between s 106KA of the Health Insurance Act 1973 (Cth) and regs 10 and 11 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth).

3 The submissions made by Dr Lee in this case were not unambiguously directed at reg 11(b). However, their nature suggests this provision was relied on by Dr Lee. Unfortunately, the Committee did not realise that, in relation to reg 11(b), it was irrelevant to consider whether the alleged difficulties of patients arose out of poor management practice. As with Committees in some other cases, this Committee impermissibly allowed its decision to be governed by its opinion on that matter. Worse, in this case, the Committee distracted itself by considering whether Dr Lee’s management practices were consistent with the Australian Government’s multicultural policy statement: A New Agenda for Multicultural Australia. That was not a matter relevant to consideration of the factual question whether there was ‘an absence of other medical services’ for Dr Lee’s patients having regard to the matters stated in placita (i) and (ii) of reg 11(b).

4 I agree with the orders proposed by Lander J.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 16 September 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 303 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

IL SONG LEE APPELLANT

AND:

WAL GRIGOR, PATRICK TAN AND DAVID RIVETT constituting the Professional Services Review Committee No 292 FIRST RESPONDENTS THE DETERMINING AUTHORITY established by section 106Q of the Health Insurance Act 1973 (Cth) SECOND RESPONDENT HEALTH INSURANCE COMMISSION THIRD RESPONDENT ALAN JOHN HOLMES in his capacity as Director of Professional Services Review FOURTH RESPONDENT BERNARD RAYMOND KELLY in his capacity as Acting Director, Professional Services Review FIFTH RESPONDENT

JUDGE:	BLACK CJ, WILCOX AND LANDER JJ
DATE:	16 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

LANDER J:

5 Dr Lee’s conduct as a general medical practitioner was inquired into by the first respondents under the peer-review based Professional Services Review Scheme contained in Part VAA of the Health Insurance Act 1973 (Cth) (the Act).

6 The first respondents constituted Professional Services Review Committee No 292 (the Committee) which was set up by the fifth respondent in his capacity as Acting Director of Professional Services Review pursuant to Adjudicative Referral No 292.

7 The first respondents reported on 18 August 2003 and found that Dr Lee had engaged in inappropriate practice by rendering 80 or more professional attendances on 37 days which constituted a prescribed pattern of services under s 106KA(1) of the Act and that ‘exceptional circumstances’ did not exist that affected the rendering of services by Dr Lee on any of the 37 days in question.

8 Dr Lee sought a review of the decision by the fifth respondent to make Adjudicative Referral No 292 to the first respondents. He also sought a review of the decision of the first respondents’ finding of inappropriate practice.

9 The primary judge rejected Dr Lee’s contention that Adjudicative Referral No 292 was invalid. He, however, accepted Dr Lee’s contention that the finding by the Committee of inappropriate practice and the finding that exceptional circumstances did not exist should be set aside.

10 On 7 February 2005 he made the following orders:

‘1. The finding by the first respondents that the applicant engaged in inappropriate practice and the finding that exceptional circumstances did not exist, must be set aside.

2. The matter should be remitted to the Director to determine whether a referral to another, differently constituted, Professional Services Review Committee should be made.

3. The first respondent is to pay the applicant’s costs of the proceedings.’

11 On 29 April 2005 he made the following further orders:

‘1. The matter be remitted to the Director of Professional Services Review with a direction that the Director of Professional Services Review amend Adjudicative Referral No 292 and establish a differently constituted Committee that is to determine the adjudicative referral made on 14 February 2002 according to law.

2. That the costs of this motion be costs in the appeal from the judgment of his Honour, Justice Jacobson, given on 7 February 2005.’

12 There seems to be a slip in the second orders.

13 Paragraph 2 of the original orders was clearly intended to be revoked by paragraph 1 of the orders made on 29 April 2005 but no order was made to that effect. Nothing turns on that.

14 Dr Lee appealed against his Honour’s refusal to set aside Adjudicative Referral No 292.

15 The respondents cross appealed against the order quashing the Committee’s finding of inappropriate practice, the further finding that exceptional circumstances did not exist, and the order remitting the matter to the Director to amend Adjudicative Referral No 292 and establish a differently constituted Committee to determine the adjudicative referral made on 14 February 2002 according to law.

16 Dr Lee abandoned his appeal before the hearing of the appeal.

17 In the end result, the only cross-appellant is the Committee. The Committee raised two matters on the cross-appeal. First, they sought to set aside his Honour’s order quashing the Committee’s decisions. Secondly, and alternatively, they sought to set aside paragraph 2 of the order of 7 February 2005 and paragraph 1 of the order of 29 April 2005, and to substitute for both of those orders an order that the matter be remitted to the Committee for further hearing according to law.

18 This cross-appeal was heard at the same time as the cross-appeal in Lee v Kelly [2005] FCAFC 197 (‘Lee v Kelly’). Dr Lee was subject to two adjudicative referrals.

19 In this case, the adjudicative referral made by the Acting Director at the time of setting up Committee 292 was that Dr Lee had rendered 80 or more professional attendances per day on 37 occasions on and from 1 January 2000 to and including 25 September 2000. In Lee v Kelly the adjudicative referral made by the Director was that Dr Lee had rendered 80 or more professional attendances per day on 37 occasions on and from 8 January 2001 to and including 12 October 2001.

20 On 13 December 2001 the Health Insurance Commission made Investigative Referral No 292 to the Director of Professional Services Review to inquire into whether Dr Lee had engaged in inappropriate practice.

21 On 14 February 2002 the Director determined to set up the Committee to consider Adjudicative Referral No 292. He appointed the first cross-appellants to that Committee and made Adjudicative Referral No 292 to the Committee.

22 The adjudicative referral was in the following terms:

‘5. Pursuant to subsection 93(1), I hereby make this adjudicative referral to PSRC No. 292 to consider whether the conduct of Dr Lee in connection with rendering the following services ("the specified services") constituted engaging in inappropriate practice because the circumstances in which some or all of the specified services were rendered constituted a prescribed pattern of services as defined in section 106KA of the Act and Part 3 of the Regulations:

● all professional attendances (as defined in Regulation 7) rendered by Dr Lee within the referral period within specified locations, namely:

87 Rowe Street, Eastwood NSW 2122

and

98 McFarlane Road Minchinbury NSW 2770.’

23 On 30 May 2002 the Committee conducted an inquiry at which Dr Lee attended with his solicitor. Dr Lee did not make any submissions to the Committee before the hearing.

24 In accordance with its obligations under s 106KD of the Act, the Committee published a draft report to Dr Lee on 22 November 2002. On 24 January 2003 Dr Lee forwarded a written submission to the Committee in response to its draft report. On 18 August 2003 the Committee published its final report in which it made the following findings:

‘122. The Committee has made findings only in respect of Dr Lee’s rendering of professional attendances on each of the 37 days listed in Report 1 on page 16 of the Adjudicative Referral.

123. The Committee reached the finding that:

● Dr Lee engaged in inappropriate practice by rendering 80 or more professional attendances on 37 days, as this constituted a prescribed pattern of services under subsection 106KA(1) of the Act; and

● the Committee does not consider that exceptional circumstances existed that affected the rendering of services by Dr Lee on any of the 37 days in question.’

25 Dr Lee then brought proceedings for review of the two decisions to which I have referred under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B(1A) of the Judiciary Act 1903 (Cth).

26 In an amended application for review Dr Lee raised other issues apart from the issues dealt with by the primary judge, claiming that Part VAA of the Act is invalid, being beyond the power of the Commonwealth under the Commonwealth Constitution. Those matters were not dealt with by the primary judge. Instead, he dealt with matters of construction of the Act and whether the Committee had conducted its inquiry in accordance with the provisions of the Act. He found in favour of Dr Lee in respect of those issues.

27 In his submissions to the Committee, Dr Lee contended that the Committee in its draft report had erred in its construction of ‘exceptional circumstances’ and had asked itself the wrong question.

28 It is clear from those submissions that Dr Lee was relying on reg 11(b) of the Regulations in support of his claim that exceptional circumstances existed that affected the rendering or initiating of services by Dr Lee during the relevant period.

29 For reasons which I have given in Oreb v Willcock [2005] FCAFC 196 (‘Oreb v Willcock’) and in Lee v Kelly, where a medical practitioner relies on reg 11(b) in support of his or her claim that any of the days to which the Committee has had regard under s 106KA(1) should not be counted, the Committee should proceed in the following way.

30 First, it should as a matter of fact consider whether or not there was an absence of medical services for the medical practitioner’s patients. Secondly, it should determine whether or not that absence of medical services was as a result of the location of the medical practitioner’s practice and the characteristics of the medical practitioner’s patients.

31 If it is satisfied of those matters, it should determine whether that absence of medical services for those reasons occurred over the relevant period.

32 If the Committee is satisfied of all of those matters, it should next consider whether the absence of those medical services affected the rendering or initiating of services by the medical practitioner.

33 Assuming the Committee to be satisfied of that further matter, the Committee should finally consider whether that occurred on a particular day or particular days which have been taken into account in determining the prescribed pattern of services in s 106KA(1).

34 If the medical practitioner is relying upon the provisions of reg 11(b), it is an error for the Committee to inquire into whether exceptional circumstances existed. The circumstances in both reg 11(a) and reg 11(b) are exceptional circumstances because s 106KA(5) of the Act deems them so to be. Because of the provisions of s 106KA(5), if a medical practitioner relies on either limb of reg 11, the inquiry is not into the question of exceptional circumstances but whether the particular circumstances identified in one or other limb have been made out.

35 In my opinion, for the reasons which follow, the Committee did not proceed upon the appropriate basis.

36 In this case, the Committee found that Dr Lee had rendered 80 or more professional attendances on 37 occasions during the referral period thereby constituting a prescribed pattern of services within the meaning of the Act and the Regulations. There can be no quarrel with that finding. Having made that finding, the Committee asked itself the following question: ‘Were there exceptional circumstances?’

37 In my opinion, for the reasons given, that was the wrong question. Dr Lee did not rely upon exceptional circumstances apart from the circumstances which are deemed by reg 11(b) to be exceptional circumstances. The question that the Committee should have posed was: ‘Was there an absence of medical services for Dr Lee’s patients as a result of the location of Dr Lee’s practice and the characteristics of Dr Lee’s patients during the relevant period?’

38 By asking itself the wrong question the Committee, in my opinion, fell into jurisdictional error.

39 However, the Committee argued on this appeal that even if it asked itself the wrong question it dealt with the factual matters upon which Dr Lee based his claim that there was an absence of medical services for his patients because of the location of his practice and the characteristics of his patients. Because it found against Dr Lee on those factual matters, the final decision at which it arrived could stand.

40 The Committee identified the factual matters upon which Dr Lee relied:

‘● "The patient profile of Dr Lee’s practice was abnormally skewed towards Korean-speaking patients."

● "Dr Lee’s Korean patient base have expectations with respect to medical care as a result of their confucianist philosophical beliefs which are above and beyond those of the normal general practitioner’s patients."

● "Dr Lee is one of a very few qualified to provide medical care and treatment to his patient base because of the combination of his ethnicity, language skills and medical qualifications."

● "There are inadequate alternative sources of Korean-speaking medical care and/or Korean interpreter services available to Dr Lee’s patients."

● Absence of part time doctor in the Practice (on a number of days) during the referral period.

● Shortage of other Korean speaking practitioners.

● Shortage of Korean consumer health information materials.’ (Footnotes omitted.)

41 It then dealt with each of those matters.

42 It is necessary in examining the Committee’s contention to address each of those matters in the way in which the Committee dealt with each of those matters.

The patient profile of Dr Lee’s practice was abnormally skewed towards Korean-speaking patients

43 The Committee said:

‘65. The Committee considers that in times of increased demand for his services, Dr Lee had available to him the options of referring patients to:

● the Department of Emergency Medicine at Ryde Hospital;

● another Korean-speaking practitioner, 300 metres away;

● local twenty-four hour medical practices; in addition to

● requesting patients to make an appointment to see him the following day.

66. The Committee finds worthy of note that the NSW Multicultural Health Communication Service has developed and implemented a state wide infrastructure within mainstream health services to ensure that appropriate, timely, accessible and equitable information about health issues and health care/services is available to people who speak languages other than English. This approach is congruent with the Australian Government’s multicultural policy statement, A New Agenda for Multicultural Australia, which emphasises that for multiculturalism to be a unifying force it needs to be inclusive.

67. Established general practitioners and their practices generally experience patients who prefer to see a particular doctor, thus this does not constitute an exceptional circumstance in Dr Lee’s case. The Committee considers it the responsibility of practitioners, such as Dr Lee, to put mechanisms in place to enable them to regulate the number of daily attendances and, in the case of an ethnic minority, proactively enlist strategies to reform patients’ expectations within Australian health care/service conventions and to utilise available mainstream infrastructures in place for this purpose.

68. Furthermore, the Committee also noted that the patient profile was a regular and longstanding feature of the Practice, with the result that it was not an exceptional occurrence on particular days. Rather, it was the kind of ongoing practice management issue, which could be addressed through practice planning and reform.’

44 In my opinion, the Committee was wrong to reject Dr Lee’s claim for the reasons it gave.

45 It is not relevant, in my opinion, that Dr Lee had the option available to him of referring patients to the hospital and other practitioners: [65]. The question was not what Dr Lee could have done to reduce the number of patients to whom he was rendering or initiating services. The question was objectively whether there was an absence of services. It may be that the facts referred to in [65] suggest that there was no absence of medical services in the area of Dr Lee’s practice, but that is not the finding which has been made by the Committee.

46 The Committee was also wrong, in my opinion, to have regard to the Australian Government’s multicultural policy statement ‘which emphasises that for multiculturalism to be a unifying force it needs to be inclusive’. In my opinion, that was wholly irrelevant. The Australian Government’s policy on multiculturalism had nothing to do in determining whether there was an absence of medical services for both of the reasons mentioned.

47 The Committee was also wrong, in my opinion, to have regard to Dr Lee’s responsibility to put mechanisms in place to regulate the number of daily attendances. The question which has to be addressed under reg 11(b) does not raise for consideration questions of practice management of the kind referred to in [67].

48 There is nothing in the Act or Regulations which require a medical practitioner to put mechanisms in place to regulate the number of daily attendances or to proactively enlist strategies to ‘reform patients’ expectations’. So far as the Committee assumed the role of advising Dr Lee on practice management, it exceeded its authority.

Dr Lee’s Korean patient base have expectations with respect to medical care as a result of their confucianist philosophical beliefs which are above and beyond those of the normal general practitioner’s patients

49 In that regard, the Committee said:

‘70. Whilst the Committee acknowledges Dr Lee’s cultural disposition and the differences he encountered when practising under Australian general practice conventions, it does not consider that this constitutes an exceptional circumstance.

71. The Committee considers that it is unacceptable for any doctor, practising under Australian general practice conventions, to "simply" turn patients away. All practitioners have an obligation to ensure they provide their patients with all available options so they are empowered to make informed choices about utilising alternative medical care services.

72. Furthermore, the Committee notes from Dr Lee’s evidence and statements that this cultural expectation has been a longstanding feature of his practice, with the result that it was not an exceptional occurrence on particular days.’

50 The Committee has asked itself, in considering this factual matter, the wrong question: [71]. It was not to the point whether the matter raised by Dr Lee constitutes an exceptional circumstance. The inquiry must be whether, if the facts have been established, they operate to establish an absence of medical services for Dr Lee’s patients for the reasons in regs 11(b)(i) and (ii).

51 The Committee again took into account irrelevant matters. Whether the cultural expectation had been a longstanding feature of his practice was not to the point and whether it was an exceptional occurrence was, again, not to the point. Moreover, it is not a relevant consideration whether practitioners have an obligation to ensure they provide their patients with all available options to empower those patients to make informed choices about utilising alternative medical care services. No such obligation rests on any medical practitioner in an examination of circumstances claimed to support reg 11(b).

Dr Lee is one of a very few qualified to provide medical care and treatment to his patient base because of the combination of his ethnicity, language skills and medical qualifications

52 Of that matter the Committee said:

‘76. The Committee does not consider Dr Lee’s unique skill set within a general practice setting to be an exceptional circumstance in his rendering of high volumes of services during the referral period. The Committee believes that during the referral period there were other culturally appropriate, equitable and accessible health services available for Korean speaking people within mainstream health services in NSW.

77. The Committee notes that at times of increased demand for Dr Lee’s services he had available to him the option of referring patients to the Department of Emergency Medicine at Ryde Hospital, another Korean-speaking practitioner, 300 metres away, local twenty-four hour medical practices and that he could also have requested patients to make an appointment to see him on another day.

78. Furthermore the Committee also notes that this was a regular and longstanding feature of the Practice, with the result that it was not an exceptional occurrence on particular days. Rather it was the kind of ongoing practice management issue, which could be addressed through practice planning and reform.’

53 For the reasons earlier given, the Committee has again in [76] asked itself the wrong question. It has had regard to irrelevant matters in [76], [77] and [78].

There are inadequate alternative sources of Korean-speaking medical care and/or Korean interpreter services available to Dr Lee’s patients

54 The Committee said:

‘85. The Committee does not accept Dr Lee’s submission that there is an absence of culturally appropriate medical and interpreter services for Korean patients. The Committee believes there are adequate, appropriate and accessible interpreter services available in NSW for the Korean population, in particular, in the northern Sydney area. These services provide Dr Lee with viable "refer on" options to Emergency Departments of hospitals or other general practitioners for his patients, having regard to their unique needs and medical requirements at the time of presentation.

...

87. In the Committee’s view, it is implicit that Dr Lee made a decision to see all patients who presented to his consulting rooms regardless of the numbers and gave no serious consideration to utilising services such as the TIS or NSW Health Care Interpreter Services as a viable strategy to regulate patient throughput.

88. For the purposes of section 106KA(2), the Committee was not persuaded that inadequate alternative sources of Korean speaking medical care and/or available of Korean interpreter services constituted an exceptional circumstance during the referral period. The Committee considers it the responsibility of practitioners, such as Dr Lee, to proactively utilise other culturally appropriate, equitable and accessible health services available for Korean speaking people within mainstream health services in NSW.’

55 In [88] the Committee has demonstrated again that it asked itself the wrong question. Also in [88], the Committee had regard to an irrelevant matter. There is, as already said, no obligation on Dr Lee to proactively utilise other culturally appropriate, equitable and accessible health services. That is not a relevant matter in an inquiry into the circumstances said to support reg 11(b). In my opinion, the matter referred to in [86] was also irrelevant, as was the matter in [87].

Absence of part time doctor in the Practice – on a number of days – during the referral period

56 Dr Lee’s case was that another medical practitioner with the surname ‘Lee’, who was a woman, was absent during the critical period because she was pregnant and also had responsibilities for her child.

57 The Committee said of that matter:

‘93. The evidence submitted by Dr Lee indicated that this difficulty was a longstanding and ongoing feature of the Practice. Accordingly it was not an exceptional circumstance on particular days. Rather, it was an ongoing foreseeable practice management issue, which could be addressed through practice planning and reform.’

58 In my opinion, again, the Committee asked itself the wrong question. Again, it took into account an irrelevant matter. Whether Dr Lee’s pregnancy or need to care for her child was foreseeable was not relevant in determining whether there was an absence of medical services for Dr Lee’s patients for both of the reasons mentioned in reg 11(b). Dr Lee’s management practice was also not relevant to that inquiry.

59 The Committee further found:

‘95. Furthermore, the Committee also notes that at times of increased demand for his services Dr Lee had the option of referring patients to the Department of Emergency Medicine at Ryde Hospital, another Korean-speaking practitioner, 300 metres away, and local twenty-four hour medical practices, and could also have requested patients to make an appointment to see him on another day.

96. For the purposes of section 106KA(2), the Committee was not persuaded there were exceptional circumstances on any of the 18 days Dr Lee (f) was absent from the Practice. Dr Lee presented no evidence to the Committee other than the fact of her absence. The Committee further notes that all medical practices have to cope with unforseen absences, usually by rescheduling appointments to maintain proper levels of services or referring urgent cases elsewhere.’

60 Those two paragraphs again show that the Committee continued to ask itself the wrong question and continued to have regard to irrelevant matters.

Shortage of other Korean speaking practitioners

‘98. The Committee does not believe that this claim justifies the rendering of high volumes of services by Dr Lee during the referral period. The Committee is of the opinion that at times of increased demand for Dr Lee’s services he had available to him the option of referring patients to the Department of Emergency Medicine at Ryde Hospital, another Korean-speaking practitioner, 300 metres away, local twenty-four medical practices and of requesting patients to make an appointment to see him on another day.

99. The Committee does not consider the shortage of Korean speaking practitioners to be an exceptional circumstance in which Dr Lee rendered services on some days during the referral period. As previously stated in this Report the Committee considers that there were sufficient other culturally appropriate, equitable and accessible health services available for Korean speaking people within mainstream health services in NSW and that his claim in this regard does not constitute an exceptional circumstance.

100. The Committee acknowledges the difficulties experienced by general practitioners in securing additional doctors. However, it must be noted that many practices in urban and suburban Australia are also in need of additional doctors, but they are able to regulate daily attendances so as not to breach section 106KA of the Act and Part 3 of the Regulations.

101. Furthermore the Committee also notes that this was a regular and longstanding feature of the Practice, with the result that it was not an exceptional occurrence on particular days. Rather, it was an ongoing practice management issue, which could be addressed through practice planning and reform.’

61 In [98] the Committee had regard to an irrelevant matter. It was not relevant whether Dr Lee had available to him the option of referring patients to the Department of Emergency Medicine at Ryde Hospital or to another Korean-speaking practitioner or to local 24 hour practices. Moreover, it was not relevant that he could request patients to make an appointment to see him on another day.

62 In [99] the Committee asked itself the wrong question. Moreover, it had regard to an irrelevant matter. In [100] the Committee had regard to a further irrelevant matter. It is not relevant that many practices in urban and suburban Australia are also in need of additional doctors. Moreover, it is not relevant in any inquiry into the absence of medical services for Dr Lee’s patients because of the location of his practice and the characteristics of his patients that other medical practitioners are able to regulate their daily attendances. What other medical practitioners who are not in the location of Dr Lee’s practice might do or not do is simply irrelevant. Further, the Committee was wrong to consider whether other medical practitioners ‘breach’ s 106KA of the Act and Part 3 of the Regulations.

63 A medical practitioner who sees 80 or more patients on 20 or more days each year is not in breach of s 106KA. Section 106KA(1) merely deems a medical practitioner to have engaged in a prescribed pattern of services and if after an inquiry under s 106KA(2) the particular day or days still exceed 20 days, there will be a finding of inappropriate practice. There is no breach of s 106KA(1) at any time by any medical practitioner. Any medical practitioner who relies upon s 106KA(2) is not in breach of that subsection.

64 In [101], the Committee had regard to irrelevant matters.

Shortage of Korean consumer health information materials

65 The Committee made a positive finding in respect of this matter that there was not a shortage of Korean consumer health information.

66 I think that finding could stand because the Committee in that regard specifically addressed the matter put to it.

67 It said, however, in making that finding:

‘106. The Committee does not consider that there was a shortage of Korean consumer health information and does not consider that Dr Lee’s claims in this regard constitutes an exceptional circumstance.’

68 I do not think that the Committee’s finding in respect to this matter was infected with the error which manifested itself throughout the report in relation to the question of exceptional circumstances because, although the Committee found that Dr Lee’s claims in this regard did not constitute an exceptional circumstance, it did so because it found that there was not in fact a shortage of Korean consumer health information materials.

69 After dealing with each of the matters separately, the Committee said:

‘107. The Committee considered each of Dr Lee’s seven claims of exceptional circumstances which he submitted were directly attributable to "Korean Cultural Indiosyncracies" and affected his practice patterns during the referral period. The Committee has also considered whether interplay between any of the claims may have constituted an exceptional circumstance. For the purposes of section 106KA and Part 3 of the Regulations, the Committee was not persuaded that exceptional circumstances existed when considering interplay between any of the claims submitted by Dr Lee.

108. The Committee was not prepared to accept that the characteristics of the Korean patients who constituted 90% of Dr Lee’s patient base were such that they constituted exceptional circumstances to justify seeing more than 80 patients per day, on each of the 37 occasions. The members of the Korean community are indisputably entitled to the same acceptable standard of care for their medical complaints as any other member of the Australian population. The implicit proposition that they, because of the attributes relating to their ethnic origin, are capable of being seen more quickly than other members of the community without any compromise to the quality of care provided is unacceptable to the Committee.

109. The Committee also found worthy of note that whilst Dr Lee stated he was aware of the "need to draw a line somewhere" he appeared to make no meaningful attempt to do so. It was clear from Dr Lee’s evidence that he did not appear to utilise a number of available practice management options to assist with regulating patient throughput during times of, and/or to offset, high demand for his services.

110. The Committee notes the Australian Government’s multicultural policy statement, A New Agenda for Multicultural Australia, launched in Parliament in December 1999, particularly in light of Dr Lee’s claim that his was an "unusual practice which services an exceptional patient base who otherwise would have considerably increased difficulty in accessing Korean-speaking medical care".

111. Dr Lee’s substantiation of exceptional circumstances revolve around his claims that the characteristics of his patients are such that there is an absence of "other" culturally appropriate medical services for those patients and that this is an exceptional circumstance relative to some days during the referral period.

"The Korean population, as a minority ethnic group, has its own unique socioeconomic and health characteristics. Because those characteristics are absent from the general population and confined to the practices of Korean-speaking doctors they are also beyond the experience of the general population of general practitioners."

"I feel very frustrated and very sceptical that, you know, despite all this written documentations they do not consider the ethnic – the problems in health care provisions of the very minority and of the very people who are disadvantaged."

112. The New Agenda is an overarching public policy that sets the national agenda for Australia’s immigration and settlement programs as well as issues associated with the cultural diversity of our population.

113. The New Agenda highlights that, in order for multiculturalism to be a unifying force for the nation, it needs to be inclusive. Multiculturalism is about and for all Australians. "Multicultural policies and programs are not to be solely identified with immigration issues and developed for minority ethnic communities."

114. Dr Lee’s claims of exceptional circumstances necessitating the requisite to be responsive to an ethnic minority’s cultural medical needs in isolation from inclusive mainstream health care services is not congruent with the national policy agenda concerning such matters.’

70 In my opinion, this aspect of the Committee’s report demonstrate a number of errors on the part of the Committee. First, in [107] and [108] the Committee addressed the wrong question in considering whether the matters raised in respect of reg 11(b) constituted ‘exceptional circumstances’. That was not the appropriate question.

71 In [109] the Committee took upon itself to have regard to Dr Lee’s practice management. That matter was not relevant in determining whether or not the facts which supported the reg 11(b) claim were made out.

72 In my opinion, the matters to which the Committee had regard in [110] to [114] were simply not relevant to the Committee’s inquiry. It is not relevant that there is an overarching public policy in relation to Australia’s immigration and settlement programs, or that there is a need for multiculturalism. Those matters had nothing to do with the question as to whether there was an absence of medical services for Dr Lee’s patients for the reasons mentioned in reg 11(b). They should simply have not been addressed.

73 In my opinion, this report indicates the Committee made two serious errors in the way in which it addressed Dr Lee’s claim under reg 11(b). The Committee consistently, in examining the facts upon which Dr Lee’s claim was based, asked itself the wrong question. It also consistently took into account irrelevant matters. In those circumstances, I cannot be sure that it examined the facts relied upon correctly. In my opinion, the report cannot stand.

74 That was also the view of the primary judge. He said:

‘44 In my opinion, it follows that, by contrast with Lee v Kelly, Committee 292 did consider whether the circumstances relied upon by Dr Lee amounted to exceptional circumstances. However, in doing so, it did not take into account that Regulation 11(b) directs attention, inter alia, to the "characteristics" of the patients. As I said in Lee v Kelly at [51], in my view these include ethnic characteristics.

45 Moreover, as in Lee v Kelly, Committee 292 assumed that Dr Lee’s Korean speaking patients would see the "culturally appropriate" health service providers without asking whether they were prepared able or in a position to do so and whether this provided the explanation for their demands on Dr Lee.

46 Accordingly, in my opinion, the findings of Committee 292 were affected by errors of law. As in Oreb, it commenced with a misunderstanding of what was meant by "exceptional circumstances". It then failed to ask itself the correct question as to what had given rise to the claimed exceptional circumstances and whether they fell within the terms of Reg 11(b). It distracted itself from addressing the correct question by taking into account an irrelevant consideration, namely the need for the patients to integrate within the wider community. These were jurisdictional errors; see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 ("Yusuf") at [84] (McHugh, Gummow and Hayne JJ).’

75 In my opinion, the primary judge’s conclusion that the decision of the Committee had to be quashed was correct and for the reasons he gave.

76 However, for the reasons I gave in Oreb v Willcock and in Lee v Kelly, the matter should have been remitted to the same Committee which had made the decision under review.

77 In the absence of any finding that the Committee could not hear the matter if remitted, there was no reason, in my opinion, to remit the matter to the Director with a direction that some other Committee be set up. This Committee was charged with the task of considering Adjudicative Referral No 292 and, in doing so, it made errors in the question that it asked itself and in having regard to irrelevant matters. There was no finding, however, that it could not reconsider the matter in accordance with these reasons and according to law.

78 For those reasons, I would allow the cross-appeal but only for the purpose of setting aside paragraph 2 of the orders made on 7 February 2005 and the orders made on 29 April 2005. In lieu thereof I would make an order that:

‘The matter be remitted to the first respondents/cross-appellants to determine Adjudicative Referral No. 292 according to law.’

79 The parties have not been heard on the question of costs. The first respondents/cross-appellants have been partly successful but only to the extent of having the order for remitter varied. I suggest that the costs of appeal be reserved. If any party seeks an order for costs then within 21 days an application should be made in writing setting out the terms of the order sought. That application should be accompanied by a written submission in support of the application. If any such application is made any other party to the appeal should file their submission in opposition to that application within a further 14 days. I propose the following orders:

1. The cross-appeal be allowed.
2. Paragraph 2 of the orders made on 7 February 2005 be set aside.
3. The orders made on 29 April 2005 be set aside.
4. The matter be remitted to the first respondents/cross-appellants to determine Adjudicative Referral No. 292 according to law.
5. The question of costs be reserved.
6. Liberty to the parties to apply for an order for costs in accordance with the directions in Lander J’s reasons

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander .

Associate:

Dated: 16 September 2005

Counsel for the Appellant:	Mr M A Robinson, Mr C Jackson
Solicitors for the Appellant:	Tress Cox Lawyers
Counsel for the Respondents:	Mr P Hanks QC, Ms R Henderson
Solicitors for the Respondents:	Minter Ellison
Date of Hearing:	2 August 2005
Date of Judgment:	16 September 2005