Cohn v Hatcher [2005] FCAFC 199 (16 September 2005)

Last Updated: 16 September 2005

FEDERAL COURT OF AUSTRALIA

Cohn v Hatcher [2005] FCAFC 199

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
Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548









MARY COHN, ROBERT BROWN AND DAVID ROSENTHAL (IN THEIR CAPACITY AS PROFESSIONAL SERVICES REVIEW COMMITTEE NO. 297), THE DETERMINING AUTHORITY (ESTABLISHED BY s 106Q OF THE HEALTH INSURANCE ACT 1973 (CTH)), HEALTH INSURANCE COMMISSION, BERNARD RAYMOND KELLY (IN HIS CAPACITY AS ACTING DIRECTOR OF PROFESSIONAL SERVICES REVIEW), ALAN JOHN HOLMES (IN HIS CAPACITY AS DIRECTOR OF PROFESSIONAL SERVICES REVIEW) v DONALD FRANK HATCHER

QUD 282 OF 2004




BLACK CJ, WILCOX and LANDER JJ
16 SEPTEMBER 2005
SYDNEY (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 282 of 2005

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

BETWEEN:	MARY COHN, ROBERT BROWN AND DAVID ROSENTHAL in their capacity as Professional Services Review Committee No. 297 FIRST APPELLANTS THE DETERMINING AUTHORITY established by s 106Q of the Health Insurance Act 1973 (Cth) SECOND APPELLANT HEALTH INSURANCE COMMISSION THIRD APPELLANT BERNARD RAYMOND KELLY in his capacity as acting Director of Professional Services Review FOURTH APPELLANT ALAN JOHN HOLMES in his capacity as Director, Professional Services Review FIFTH APPELLANT
AND:	DONALD FRANK HATCHER RESPONDENT
JUDGES:	BLACK CJ, WILCOX and LANDER JJ
DATE OF ORDER:	16 SEPTEMBER 2005
WHERE MADE:	SYDNEY (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. Paragraph 3 of the orders made by Kiefel J on 30 November 2004 as varied on 15 April 2004 be set aside.
3. In lieu thereof there be an order that:

‘3. The matter be remitted to the first respondent to determine Adjudicative Referral No. 297 in accordance with law’.

4. The question of costs be reserved.
5. 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
QUEENSLAND DISTRICT REGISTRY	QUD 282 OF 2004

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

BETWEEN:

MARY COHN, ROBERT BROWN AND DAVID ROSENTHAL in their capacity as Professional Services Review Committee No. 297 FIRST APPELLANTS THE DETERMINING AUTHORITY established by s 106Q of the Health Insurance Act 1973 (Cth) SECOND APPELLANT HEALTH INSURANCE COMMISSION THIRD APPELLANT BERNARD RAYMOND KELLY in his capacity as acting Director of Professional Services Review FOURTH APPELLANT ALAN JOHN HOLMES in his capacity as Director, Professional Services Review FIFTH APPELLANT

AND:

DONALD FRANK HATCHER RESPONDENT

JUDGES:	BLACK CJ, WILCOX and LANDER JJ
DATE:	16 SEPTEMBER 2005
PLACE:	SYDNEY (HEARD IN BRISBANE)

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
QUEENSLAND DISTRICT REGISTRY	QUD 282 OF 2005

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

BETWEEN:

MARY COHN, ROBERT BROWN AND DAVID ROSENTHAL in their capacity as Professional Services Review Committee No. 297 FIRST APPELLANTS THE DETERMINING AUTHORITY established by s 106Q of the Health Insurance Act 1973 (Cth) SECOND APPELLANT HEALTH INSURANCE COMMISSION THIRD APPELLANT BERNARD RAYMOND KELLY in his capacity as acting Director of Professional Services Review FOURTH APPELLANT ALAN JOHN HOLMES in his capacity as Director, Professional Services Review FIFTH APPELLANT

AND:

DONALD FRANK HATCHER RESPONDENT

JUDGES:	BLACK CJ, WILCOX and LANDER JJ
DATE:	16 SEPTEMBER 2005
PLACE:	SYDNEY (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

WILCOX J:

2 I agree with the orders proposed by Lander J.

3 Lander J has set out the circumstances of this case and the legislative background against which it must be determined. I need not repeat what his Honour has said. Neither need I repeat what the Chief Justice and I said in Oreb v Willcock [2005] FCAFC 196 concerning the relationship between s 106KA of the Health Insurance Act 1973 (Cth) (‘the Act’) and regs 10 and 11 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) (‘the Regulations’).

4 In this case, as in Oreb v Willcock, the person under review did not indicate to the relevant Professional Services Review Committee whether he was arguing for the existence of ‘exceptional circumstances’, in the ordinary English meaning of those words, under s 106KA of the Act, or the existence of deemed exceptional circumstances, pursuant to reg 11 of the Regulations. To the extent that the cited circumstances were the former, I think his case was sufficiently and properly addressed by the Committee. However, to the extent it was the latter, it was not addressed, free of legally irrelevant management issues and the question whether the problem argued by Dr Hatcher was one of an ongoing nature, as distinct from being intermittent or episodic.

5 As we endeavoured to explain in Oreb v Willcock, there may be ‘an absence of other medical services’, within the meaning of reg 11(b), notwithstanding that the absence is ongoing and that the person under review has not skilfully managed his or her practice. Under reg 11(b), it is necessary for the Committee to focus on the patients’ position, not the practitioner’s method of working.

6 I agree with Lander J that in the present case, the Committee proceeded on the basis that reg 11 added nothing to the expression ‘exceptional circumstances’ in s 106KA(2). For the reasons expressed in Oreb v Willcock, this was an erroneous approach. It necessarily requires that the Committee’s determination be set aside and the matter remitted for further consideration and determination. I agree with Lander J that there is no good reason for requiring reconstitution of the Committee.

I certify that the preceding five (5) 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
QUEENSLAND DISTRICT REGISTRY	QUD 282 OF 2004

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

BETWEEN:

MARY COHN, ROBERT BROWN AND DAVID ROSENTHAL in their capacity as Professional Services Review Committee No. 297 FIRST APPELLANTS THE DETERMINING AUTHORITY established by s 106Q of the Health Insurance Act 1973 (Cth) SECOND APPELLANT HEALTH INSURANCE COMMISSION THIRD APPELLANT BERNARD RAYMOND KELLY in his capacity as acting Director of Professional Services Review FOURTH APPELLANT ALAN JOHN HOLMES in his capacity as Director, Professional Services Review FIFTH APPELLANT

AND:

DONALD FRANK HATCHER RESPONDENT

JUDGES:	BLACK CJ, WILCOX and LANDER JJ
DATE:	16 SEPTEMBER 2005
PLACE:	SYDNEY (HEARD IN BRISBANE)

REASONS FOR JUDGMENT

LANDER J:

7 The respondent is a medical practitioner whose conduct was the subject of an inquiry by the first appellant sitting as the Professional Services Review Committee No. 297 (the Committee) under Part VAA of the Health Insurance Act 1973 (Cth) (the Act) and the Health Insurance (Professional Services Review) Regulations 1999 (the Regulations).

8 On 13 December 2001 the Health Insurance Commission (the third appellant) (the Commission) made an Investigative Referral No. 297 to the fourth appellant who was then the Acting Director, Professional Services Review under the Act.

9 This was the second investigative referral by the Commission. On 7 June 2001 the Commission had previously referred the respondent’s conduct to the Director of Professional Services Review in Investigative Referral No. 254 in relation to the same referral period and the same services as those contained in Investigative Referral No. 297. Investigative Referral No. 254 did not particularise the conduct which was considered relevant to the investigation into whether the respondent engaged in inappropriate practice and, in those circumstances, the then Director decided to take no further action in respect of that referral.

10 The Acting Director of Professional Services Review conducted an inquiry, as he was obliged, under s 89 of the Act into the referred services in Investigative Referral No. 297.

11 The Acting Director determined that he should proceed under s 93(1) of the Act and on 14 February 2002 set up the Committee to consider whether the respondent’s conduct in connection with rendering the specified services constituted engaging in inappropriate practice as defined under the Act.

12 On 15 November 2002 the Committee published its finding that:

‘Dr Donald Frank Hatcher engaged in inappropriate practice by rendering 80 or more professional attendances on each of the 37 days, as this constituted a prescribed pattern of services under subsection 106KA(1) of the Act, and for the purposes of subsection 106KA(2) of the Act, it does not consider that exceptional circumstances existed that affected the rendering of services by Dr Hatcher on any of the 37 days in question.’

13 Because the Committee made a finding of inappropriate practice, s 106T of the Act was enlivened and the Determining Authority was bound to consider the Committee’s finding in accordance with the procedure under that section and s 106TA, s 106U and s 106UA.

14 On 15 March 2003 the Determining Authority (the members of which were unanimous) made a final determination and, under s 106TA, made the following directions:

‘3. Under section 106TA of the Act, the Determining Authority’s [sic] directs that:

(i) Dr Hatcher be reprimanded by the Director, Professional Services Review, or the Director’s nominee (paragraph 106U(1)(a) of the Act);

(ii) Dr Hatcher be counselled by the Director, Professional Services Review, or the Director’s nominee (paragraph 106U(1)(b) of the Act);

(iii) Dr Hatcher repay to the Commonwealth, Medicare benefits in the amount of $67,796.75 (sub-paragraph 106U(1)(ca) of the Act); and

(iv) Dr Hatcher be fully disqualified for a period of 4 weeks from the time when the final determination takes effect (paragraph 106U(1)(h) of the Act).’

15 It published reasons for those directions.

16 The respondent sought a review of the decision of the Commission to make the Investigative Referral No. 297 to the Acting Director; the decision of the Committee’s finding of inappropriate practice; and the decision of the Determining Authority to give the directions.

17 On 30 November 2004 the primary judge made the following orders:

‘1. The directions of 15 May 2003 by the [Determining Authority] be set aside.

2. The finding of the [Committee] of inappropriate practice made on 15 November 2002 be set aside.

3. The matter be remitted to the Director of Professional Services for determination as to whether to make a referral to another, differently constituted, Committee.

4. The [Committee and the Determining Authority] pay the applicant’s costs of the application.’

18 On 15 April 2005 the primary judge varied paragraph 3 of the orders made on 30 November 2004 and ordered:

‘3. The matter be remitted to the Director of Professional Services Review with a direction to amend Adjudicative Referral No 297 so as to reconstitute the membership of the Committee that is to determine the adjudicative referral made on 21 February 2002 according to law.’

19 The grounds relied on for review of the decisions before the primary judge were:

‘1. The making of the Investigative Referral involved jurisdictional error and errors of law and was an improper exercise of power, in that:

(i) The Third Respondent erroneously construed the Act as establishing a separate procedure for investigative referrals alleging conduct constituting a prescribed pattern of services within s 106KA of the Act.
(ii) The Third Respondent erroneously construed the Act as requiring it to make an investigative referral once it had identified a prescribed pattern of services.
(iii) The Third Respondent applied a policy of making an investigative referral once it had identified a prescribed pattern of services without regard to the merits of the particular case.
(iv) The Third Respondent failed to take into consideration all relevant aspects of the conduct of the applicant over the referral period.
(v) The Third Respondent failed to consider whether during the referral period the applicant might have engaged in inappropriate practice as defined in s 82 of the Act.
...

5. The preparation of the Committee’s Report involved errors of law, in that:
...

(ii) The First Respondents thought that "exceptional circumstances" within s 106KA(2) and (5) of the Act were "generally intermittent or episodic situations beyond the practitioner’s control".
(iii) The First Respondents thought that "exceptional circumstances" within s 106KA(2) and (5) of the Act were "most likely to be of an intermittent or episodic nature, rather than a predicable on-going situation".
(iv) The First Respondents thought that it would "be difficult to justify" more than 80 per day "on an on-going" basis as distinct from "occasionally".
(v) The First Respondents required that evidence of exceptional circumstances relevant to s 106KA(2) should show particular distinguishing features when compared to the applicant’s attendances on other days during the referral period.
(vi) The First Respondent considered that regular or long-standing features of the Applicant’s practice, including the general shortage in Roma of doctors and of doctors providing bulk-billing to disadvantaged groups, were incapable of constituting exceptional circumstances within s 102KA(2).

...

(viii) The First Respondents should have held that "exceptional circumstances" within s 106KA(2) could equally arise from events affecting a medical practice which preceded the referral period and which affected the rendering of services throughout the referral period.

...

(x) The First Respondents failed to consider separately whether the services rendered by the applicant on all or some of the 37 days came within the circumstances prescribed in either reg 11(a) or 11(b).
(xi) It was not open to the First Respondents to hold (if they did) that the applicant’s circumstances on all or some of the 37 days were not circumstances coming within reg 11(b), in view of their findings that:

• The applicant practiced in a disadvantaged area of rural Queensland, where there was a shortage of doctors and a high patient demand during the referral period.
• The applicant was bound to see emergency cases and some patients attending without appointment even where this took him over 70 patients per day.
• The applicant provided a service to disadvantaged patients in an under-serviced area, as the only doctor in Roma who bulk billed all patients.

...

5A. The first respondent erred in law in its consideration of whether the applicant’s circumstances constituted exceptional circumstances in that it considered those circumstances in isolation and did not consider those circumstances cumulatively, or as part of the whole of the circumstances of the applicant.

5B. The first respondent erred in law in its consideration of whether the applicant’s circumstances constituted exceptional circumstances in that it was of the view that a circumstance that was a "regular and longstanding feature" of the applicant’s practice could not constitute an exceptional circumstance.

10. The Second Respondent had no jurisdiction or authority to make a direction under s 106U(1)(ca) that the applicant pay $67,796.75 since:

(i) The First Respondents made no findings which identified or allowed any identification of one or more services which was rendered by the applicant and in connection with which he had engaged in inappropriate practice.
(ii) Alternatively, any finding by the First Respondents which allowed a direction under s 106U(1)(ca) extended no further than that services had been inappropriately rendered to those patients who attended at times where the applicant exceeded the threshold fixed by Regulation 10, i.e. those services rendered after the 79^th service on those days after the 19^th day in which 80 or more services were rendered.’

20 Although the primary judge’s orders do not say so, the application for the review of the Commission’s decision was dismissed and, as the orders disclose, the application for the review of the decision of the Committee finding inappropriate practice on the part of the respondent upheld. Separate complaints in relation to the Determining Authority’s decisions were dismissed but, of course, because the finding of inappropriate practice was set aside the decision of the Determining Authority had to be also set aside.

21 On this appeal, the Committee contends that the primary judge’s decision setting aside the Committee’s finding should itself be set aside. If the Committee were successful in that argument, it would follow that the order setting aside the Determining Authority’s decision should also be reversed and the Determining Authority’s directions reinstated.

22 This matter was argued before the decision of this Court in Oreb v Willcock [2005] FCAFC 196 (‘Oreb v Willcock’) which addresses the same contentions in relation to the construction of s 106KA of the Act as were considered by the primary judge in this matter.

23 On 13 December 2001 the Commission made Investigative Referral No. 297 to the Acting Director in respect of services rendered by the respondent between 1 January 2000 and 6 November 2000.

24 The referral stated that the Commission considered:

‘... Dr Hatcher may have engaged in inappropriate practice because there is evidence that some of Dr Hatcher’s professional attendances constitute a prescribed pattern of services as defined in s 106KA of the Act and Part III of the Regulations.’

25 The referral stated that the Commission records disclosed that the respondent had rendered 80 or more professional attendances on a single day on 37 occasions between 1 January 2000 and 6 November 2000.

26 After the matter was referred to the Acting Director, the respondent made a submission to the Acting Director pursuant to s 88 of the Act.

27 On 21 February 2002 the Acting Director advised the respondent that he had decided to make Adjudicative Referral No. 297 to the Committee to inquire into whether the respondent had engaged in appropriate practice in connection with the rendering of services between 1 January and 6 November 2000.

28 On 22 March 2002 the respondent was advised that the hearing would take place on 17 May 2002. On 2 May 2002 Dr Hatcher authorised the release to the Committee of the submission he had given the Director pursuant to s 88 of the Act. The hearing took place on 17 May 2002. On 7 June 2002 the respondent forwarded a further written submission to the Committee.

29 On 18 September 2002, in compliance with s 106KD(3), the Committee provided the respondent with its draft report. On 14 October 2002 the respondent responded to that draft report by forwarding a further written submission to the Committee. On 15 November 2002 the Committee provided its final report to the respondent.

30 In that report the Committee recorded that the respondent did not challenge the Commission’s evidence in his written submission and accepted the data contained in the adjudicative referral. The Committee therefore accepted the Commission’s evidence and found that the respondent rendered 80 or more professional attendances on 37 occasions during the referral period.

31 The question before the Committee was whether exceptional circumstances existed affecting the rendering or initiating of services by the respondent on any of those days on which he had rendered or initiated 80 or more professional attendances so as to displace the presumption of inappropriate practice in respect of that day: s 106KA(2) and reg 11.

32 Section 106KA was introduced by the Health Insurance Amendment (Professional Services Review) Act 1999 (Cth) to implement recommendations in the report of the Review Committee of the Professional Services Review Scheme. That Committee had been established by the government in 1998 to provide a comprehensive review of the Professional Services Review Scheme reported in March 1999.

33 Section 106KA(1) provides:

‘(1) Subject to subsections (2) and (2A), if, during a particular period (the relevant period), the circumstances in which some or all of the referred services were rendered or initiated constituted a prescribed pattern of services, the conduct of the person under review in connection with rendering or initiating services during that period in those circumstances is taken, for the purposes of this Part, to have constituted engaging in inappropriate practice.’

34 Section 106KA(2) provides:

‘(2) If the person under review satisfies the Committee that, on a particular day or particular days during the relevant period, exceptional circumstances existed that affected the rendering or initiating of services by the person, the person’s conduct in connection with rendering or initiating services on that day or those days is not taken by subsection (1) to have constituted engaging in inappropriate practice.’

35 Section 106KA(5) provides:

‘(5) The circumstances that constitute exceptional circumstances for the purposes of subsection (2) include, but are not limited to, circumstances that are declared by the regulations to be exceptional circumstances.’

36 Regulation 11 of the Regulations provides:

‘For subsection 106KA (5) of the Act, the following circumstances are declared as constituting exceptional circumstances:

(a) an unusual occurrence causing an unusual level of need for professional attendances;

(b) an absence of other medical services, for patients of the person under review during the relevant period, having regard to:

(i) the location of the practice of the person under review; and
(ii) characteristics of the patients of the person under review.’

37 The Committee addressed the question of exceptional circumstances noting the claims of exceptional circumstances as follows:

‘ Dr Hatcher works in a rural area with an ongoing shortage of doctors and he also sees patients from the surrounding area due to a lack of continuity of care in those areas.

Dr Hatcher has reduced the number of patients he sees to 70 per day but is legally bound to see emergency cases above that number and some other patients attend without an appointment.

Roma has a high percentage of disadvantaged, unemployed and Aboriginal people and Dr Hatcher is the only doctor in town who bulk bills all patients.

A lot of patients come into town on Tuesdays and Thursdays for the cattle sales and expect to be seen by the doctor. Likewise there is high patient demand after long weekends, after Dr Hatcher has been on holiday, and during the winter season.

Dr Hatcher has more time to see patients as his practice is highly organised and two nursing sisters do the basic procedures and most of the day-to-day running of the practice.’

38 It addressed each of those matters but found none of them to be exceptional circumstances and therefore concluded that all of the 37 days should be reckoned for the purposes of s 106KA(1).

39 After discussing s 106KA and the report of the Review Committee of the Professional Services Review Scheme, the Committee said:

‘37. This Committee considers that these passages also confirm that "exceptional circumstances" were seen as most likely to be of an intermittent or episodic nature, rather than a predictable on-going situation. The Committee does not see that some extreme on-going circumstances is totally ruled out (if "particular days" can be "many days") – although the general body of general practitioners would ordinarily expect a practitioner to manage their practice to promptly bring patient attendance rates down to acceptable levels such that proper clinical care can be provided to all patients.

38. In summary, it appears to the Committee that ss. 106KA(1) and the Regulations implement a view of the legislature that it is most unlikely that 80 or more professional attendances can be rendered satisfactorily on a given day. The "20 or more days" proviso acknowledges that the exigencies of normal practice may occasionally require a doctor to provide more attendances in a day than would otherwise be considered satisfactory. But by ss. 106KA(2), exceptional circumstances will be required to justify 20 or more such days. Thus, the exception may be read as excusing lower standard services on particular days because of exceptional circumstances – but it will be difficult to justify this on an on-going basis.’

40 In respect of the first matter: Dr Hatcher works in a rural area with an ongoing shortage of doctors and he also sees patients from the surrounding area due to a lack of continuity of care in those areas, the Committee found:

‘47. The Committee acknowledges that Dr Hatcher practised in a disadvantaged area of rural Queensland and it recognises the difficulties faced by practitioners in rural areas and the importance of continuity of patient care. However, while a shortage of doctors and a high patient demand may have existed during the referral period, the Committee considers that these problems could have been addressed through more effective practice management. In addition, this appeared to be a long-standing difficulty and, accordingly, it was not an exceptional occurrence on particular days (reference paragraph 37 of this report).’

41 In respect of the second matter: Dr Hatcher has reduced the number of patients he sees to 70 per day but is legally bound to see emergency cases above that number and some other patients attend without an appointment, the Committee found:

‘48. Dr Hatcher submitted that he tries to limit the number of patients he sees to 70 per day but that invariably emergency cases attend and he is legally bound to see those patients. In addition, extra patients, especially from out of town, also attend with family members but without their own appointment. For these reasons, Dr Hatcher submitted, the number of professional attendances can exceed the 70 and 80 patient per day limit and so they constitute exceptional circumstances.

49. This presents to the Committee as patient-driven servicing. The Committee does not support this notion and cannot accept this as an exceptional circumstance. In a general practice setting, it is to be expected that practitioners deal with unexpected or emergency cases. The Committee considers that it is the responsibility of practitioners to put mechanisms in place to enable them to regulate the number of daily attendances and this problem could be addressed through better practice management. In the Committee’s opinion, the general body of general practitioners would consider reducing the number of non-urgent appointments and/or rescheduling non-urgent cases to be the correct method of managing such a situation.

50. Again, the Committee notes that this appeared to be a regular and long-standing feature of Dr Hatcher’s practice and so it was not an exceptional event on particular days.’

42 In respect of the third matter: Roma has a high percentage of disadvantaged, unemployed and Aboriginal people and Dr Hatcher is the only doctor in town who bulk bills all patients, the Committee found:

‘51. Dr Hatcher advised that he bulk bills his patients (as opposed to the other doctors in the town who, he claimed, either do not bulk bill at all or bulk bill pensioners and Health Care Card holders only). While the Committee understands that Dr Hatcher is providing a service to disadvantaged patients in an under-serviced area, it does not consider this to be an exceptional circumstance; it is not uncommon for patients in rural and urban areas to come from disadvantaged groups and the practice of bulk billing is common and widespread throughout Australia.

52. Furthermore, the Committee again notes Dr Hatcher’s evidence that this was a regular and longstanding feature of the practice, with the result that it was not an exceptional occurrence on particular days.’

43 In respect of the fourth matter: A lot of patients come into town on Tuesdays and Thursdays for the cattle sales and expect to be seen by the doctor. Likewise there is high patient demand after long weekends, after Dr Hatcher has been on holiday, and during the winter season, the Committee found:

‘53. Dr Hatcher submitted that Tuesdays and Thursdays were cattle sale days in Roma and that patients from out of town were more likely to present on those days. He also submitted that there was a high patient demand after long weekends, after he had been on holiday, and during the winter season. This, however, was not borne out by the HIC data; there did not appear to be any difference in patterns of servicing related to any of these factors. For example, while 12 of the 37 days referred fell on a Thursday and 9 on a Tuesday, 10 of the days referred fell on a Monday. Also, while some of the days referred did occur around holiday periods, this did not happen on all occasions that Dr Hatcher was away from the practice (see, for example, July and October 2000, per HIC data in Report 4 on page 21 of the Adjudicative Referral).

54. The Committee considers that while these factors certainly had some effect, Dr Hatcher’s pattern of servicing remained fairly constant. In any event, holiday and seasonal factors are not peculiar to Dr Hatcher’s practice and do not set him apart from other general practitioners. The Committee, therefore, concludes that these are not exceptional circumstances.’

44 In respect of the last matter: Dr Hatcher has more time to see patients as his practice is highly organised and two nursing sisters do the basic procedures and most of the day-to-day running of the practice, the Committee found:

‘55. The Committee notes Dr Hatcher’s claim that his practice is highly organised but considers that this is not an unusual feature in general practice. The Committee further notes that the 80-patient limit is one agreed to by the profession as an extreme number of patients to see in one day, with a very high likelihood that the practitioner would be stretched to the limit and the level of clinical care for patients would suffer (reference paragraph 38 of this report).

56. Having regard to the intent of the legislation, and the fact that this aspect does not set Dr Hatcher apart from other general practitioners, the Committee does not consider that this constitutes an exceptional circumstance. The Committee again notes that this was a regular and longstanding feature of Dr Hatcher’s practice and so it was not an exceptional occurrence on particular days.’

45 For all those reasons, the Committee found that the respondent had not discharged his onus to establish exceptional circumstances under s 106KA(2).

46 Before the primary judge, the respondent submitted that the Commission’s decision to refer the respondent’s conduct to the Director should be quashed. It was argued that such a referral should not be made automatically. Her Honour rejected that ground. She said that there was no additional factor to which the Commission should have had regard before making its referral. Her Honour said that the Commission has a limited role and is not required to make any finding of inappropriate practice. That is clearly right. That is for the Committee. Her Honour also said, correctly in my view, that it was no part of the Commission’s function to consider whether ‘exceptional circumstances’ exist. There is no challenge to that aspect of Her Honour’s reasons. She then considered ‘exceptional circumstances’.

47 The respondent contended before the primary judge that the Committee was wrong when addressing ‘exceptional circumstances’ to generally refer to intermittent or episodic situations rather than ongoing situations or those of long standing. It was also contended that the Committee was wrong to find that the term does not refer to matters which are within a practitioner’s control. Her Honour said of ‘exceptional circumstances’:

‘ "Exceptional" circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation.’

48 The primary judge said:

‘52 Section 106KA(2) has the effect that a finding of inappropriate practice which would otherwise be made under s 106KA(1) is not to be made. The reason it is not made is that the Committee is satisfied that the explanation provided by the practitioner, as to why the practitioner was required to attend upon so many patients on the days in question, identifies exceptional circumstances. The "exceptional circumstances" are therefore an unusual circumstance or circumstances which caused or influenced the practitioner to exceed the number of services which ought to have been provided or which otherwise provides the explanation for that conduct. This connexion is confirmed by the reference in the subsection to circumstances which existed ‘that affected’ the rendering of services.’

49 The primary judge said, in construing s 106KA(2):

‘53 It does not seem to me that the ‘exceptional circumstances’ in s 106KA(2) should be read as importing some temporal element. The words are not directly qualified and there is nothing in the purpose or object of the subsection which would suggest that such a limitation was either intended or necessary. The purpose of the provision is to protect a practitioner where the large number of consultations are shown to have been brought about by circumstances which are out of the ordinary and, one would think, beyond their control. Protective provisions ought not be construed in such a way as to limit their scope: Day & Dent Constructions Pty Ltd (In Liquidation) v North Australian Properties Pty Ltd (Provisional Liquidator Appointed) [1982] HCA 20; (1982) 150 CLR 85 at 107 - 108 per Mason J. If the Committee, when it considers the provision of services, finds that exceptional circumstances existed, the basis for an exemption from a finding of inappropriate practice is made out. Such a finding can and should relate to so much of the referral period over which the exceptional circumstances were maintained.’

50 She said of regs 11(a) and 11(b):

‘56 Regulation 11(a) describes ‘an unusual occurrence causing an unusual level of need for professional attendances’ as exceptional circumstances. One may consider the example of an epidemic or a tragedy involving injury to many people. Occurrences of these types may require far more doctors in one location than is normally required. Their duration may vary, depending upon the nature of the occurrence and the availability of other practitioners over time to assist and so to reduce the number of services each practitioner is required to provide. It may however be observed that occurrences of this kind would not be expected to continue indefinitely. But that assumption does not provide a warrant for reading ‘exceptional circumstances’ or the duration of ‘unusual occurrences’ as limited to particular periods of time. It may however be observed, in connexion with this part of the regulation, that it requires that the unusual occurrence explains the need for the level of services provided in the period. This is consistent with the construction of s 106KA(2) to which I have referred.

57 The circumstances referred to in reg 11(b) might pertain to a lengthy and even an indefinite period. Exceptional circumstances will exist so long as there are no other medical services available to the practitioner’s patients. In some rural or remote areas this may not be a matter which can readily be resolved. The fact that it is a circumstance which might maintain for some time was acknowledged by the Committee itself.

58 In my view the Committee was in error in limiting the operation of "exceptional circumstances" to intermittent or episodic events and denying their application to circumstances which were of an on-going nature. This error clearly affects its findings relating to the applicant’s claim that a shortage of medical services put him in a position where he had no choice but to see an unacceptably high number of patients. It is difficult to imagine that the decision may not have been different if this error had not occurred and therefore the decision involves an error of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 353, 384. Nonetheless there is another aspect of the Committee’s understanding of the meaning of "exceptional circumstances" which requires consideration.’

51 Her Honour found that the Committee was in error in limiting the expression ‘exceptional circumstances’ to intermittent or episodic events. Moreover, the learned primary judge found that the Committee failed to address reg 11(b) in its terms and failed to properly consider whether there was a shortage of doctors in the area for the number of patients needing services and the respondent’s claim that he was the only doctor who could provide medical services to disadvantaged people because he bulk-billed.

52 Her Honour said in par [63]:

‘63 The Committee approached the references to the shortage of medical services and the applicant’s bulk-billing practice as separate questions. It was of the view that because shortages of medical services were not uncommon in some rural areas they could not be regarded as exceptional circumstances. And it considered that the provision of services which are bulk-billed are not themselves unusual. What it did not consider was whether the combination of which the applicant spoke provided the explanation of the need for his services and whether they were exceptional. I add that the Committee’s reasoning with respect to shortages is untenable. The fact that there may be a number of areas suffering from a shortage of medical services does not negate the fact that there is a shortage in each area. It follows that in each area there will be an ‘exceptional circumstance’ as contemplated by reg 11(b).’

53 It was contended by the appellants on appeal that s 106KA of the Act was intended to address the quality of services rendered by, in this case, medical practitioners. It was contended that the section, coupled with the Regulations, assumed that where a medical practitioner delivered 80 or more services in a day the quality of services was thereby devalued. It was submitted that the legislation assumed, however, that, from time to time but not exceeding 20 days in a year, the exigencies of practice might require a medical practitioner to render services of that number. However, it was contended that, if those number of services were rendered on more than 20 days, the medical practitioner would have to establish that there were exceptional circumstances on one or more of those days which would reduce the number to or below 20 otherwise the medical practitioner would be deemed to have engaged in inappropriate practice.

54 The legislation (including the Regulations) provides that a medical practitioner who renders more than 80 services a day for more than 20 days in a year has engaged in inappropriate practice. The legislation thereby assumes that if a medical practitioner renders more than 80 services on a particular day the quality of the service will be devalued. However, the legislation also assumes that, because of any number of factors, a medical practitioner may from time to time be called upon to render services of that number in order to carry out the medical practitioner’s practice. The legislation assumes that that should not occur more than 20 times in a year.

55 If, however, it is established to the Committee’s satisfaction that a medical practitioner has rendered more than 80 services a day on more than 20 days a year, the onus falls upon the medical practitioner to establish that there were exceptional circumstances which existed on one or more of the days in question so that that day should not be taken into account in determining the total number of days upon which 80 services or more were conducted.

56 For the reasons I gave in Oreb v Willcock, the question must be as to whether or not the exceptional circumstances existed on any of the particular days on which the Committee has found that 80 or more services have been rendered or initiated. That does not mean that the exceptional circumstances could not have existed on other days but, in the end result, the inquiry is as to whether the exceptional circumstances existed on the particular day.

57 As my reasons in Oreb v Willcock show, having regard to the provisions of section 106KA(2) and reg 11, there are three ways in which a medical practitioner may discharge the onus which is cast upon him or her under s 106KA(2).

58 First, the medical practitioner may simply establish that on a particular day or days exceptional circumstances existed. In that regard, it would be wrong to limit the circumstances which may be exceptional. By definition they are exceptional and therefore unusual or out of the ordinary. It follows that I agree with Her Honour’s reasons at [49] and [52] that, when considering exceptional circumstances in the context of s 106KA(2), regard must be had to circumstances which are unusual or out of the ordinary. But that does not mean that those words are to be substituted for the words in the Act. However, generally in the context to which I have referred, ‘exceptional circumstances’ may be understood to be unusual or out of the ordinary.

59 If the medical practitioner can establish that there are exceptional circumstances which existed, the medical practitioner must then establish that those exceptional circumstances ‘affected the rendering or initiating of services’ by the medical practitioner.

60 I considered that phrase in Oreb v Willcock. I do not need to add to those reasons for the construction at which I arrived.

61 If the medical practitioner establishes that exceptional circumstances existed that affected the rendering or initiating of services by the medical practitioner, the medical practitioner must next establish that those circumstances existed and affected the rendering or initiating of services by the medical practitioner on the particular day or days during the relevant period which constitute the prescribed pattern of services in s 106KA(1).

62 If it can be established that those exceptional circumstances operated on a particular day or days, then that day or those days will not be reckoned in the calculation of the number of days for the purpose of s 106KA(1).

63 I think Her Honour’s construction of s 106KA(2) and the manner in which exceptional circumstances must be approached is consistent with what I have said in more detail in Oreb v Willcock and in these reasons.

64 I would not, however, with respect, have regard to the words of reg 11 for the purpose of construing s 106KA(2). I think the circumstances which are deemed in reg 11 do not assist in determining what might be exceptional circumstances in the ordinary meaning of those words in s 106KA(2).

65 Secondly, the practitioner may establish exceptional circumstances by establishing that an unusual occurrence caused an unusual level of need for professional attendances: reg 11(a).

66 For the reasons given in Oreb v Willcock, if the medical practitioner relies upon the provisions of reg 11, he or she does not have to establish exceptional circumstances. Section 106KA(5) makes the separate circumstances in subparagraph (a) and (b) of reg 11, exceptional circumstances. Because of that provision, if the medical practitioner relies upon reg 11(a), the medical practitioner simply has to establish an unusual occurrence which caused an unusual level of need for professional attendances.

67 Again, it would not be appropriate to attempt to categorise what might be an unusual occurrence or what might be an unusual level of need. The occurrence must be unusual and the level of need must be unusual and be caused by the unusual occurrence. Regulation 11(a) provides for circumstances which are like, but not the same as, circumstances which might be ‘exceptional circumstances’ in s 106KA(2). That must be so. If reg 11(a) referred only to the same circumstances as is contemplated in exceptional circumstances in s 106KA(2), then there would be no need for the regulation. Therefore, because of the provisions of s 106KA(5), when considering a medical practitioner’s case relying on reg 11(a), the question of exceptional circumstances is ignored. The question is, in that case, as I have said, whether an unusual occurrence occurred and whether that unusual occurrence caused an unusual level of need for professional attendances.

68 Again, no more need be said about the paragraph other than because the occurrence must be unusual it must be not usual or out of the ordinary. Again, because the level of need for professional services which must be caused must be unusual, that level of professional services must be not usual or must be out of the ordinary.

69 If the medical practitioner established that the particular occurrence upon which he or she was relying to establish reg 11(a) occurred on each day upon which the medical practitioner practised, it might be thought that the occurrence was not unusual but usual. So also if a medical practitioner were to establish that on every day upon which he or she practised there was a need for the medical practitioner to render more than 80 services it would follow that it might be thought that the usual level of professional services was of that kind.

70 If the medical practitioner establishes that an unusual occurrence occurred which causes an unusual level of need for professional attendances, the medical practitioner must next establish that that occurrence, which caused an unusual level of need for professional attendances, affected the rendering or initiating of services by the medical practitioner.

71 If all of those matters are established, then the medical practitioner must establish that the unusual occurrence, which caused an unusual level of need for professional attendances, that affected the rendering or initiating of services by the person, occurred on the particular day or days which are said by the Committee to constitute the prescribed pattern of services in s 106KA(1).

72 Thirdly, the medical practitioner can discharge his or her onus under s 106KA(2) by establishing that there was an absence of other medical services for the medical practitioner’s patients during the relevant period, having regard to the location of the medical practitioner’s practice and the characteristics of the medical practitioner’s patients.

73 Like reg 11(a), reg 11(b) does not raise as an issue the question of exceptional circumstances. The medical practitioner will discharge the onus if the medical practitioner can establish the elements of reg 11(b).

74 Those elements are; first, an absence of other medical services for the medical practitioner’s patients during the period under review which must mean the whole of the period in that case, which will include days which are not some of the days relied upon in the adjudicative referral. ‘Relevant period’ is not defined in the regulation. However, relevant period must have the same meaning as those words in s 106KA(1), s 106KA(2) and s 106KA(3) which means the whole of the period over which the adjudicative referral prescribes the pattern of services. In this case, if reliance is placed upon reg 11(b), the whole of the period over which it is said that the particular days give rise to the inappropriate practice becomes relevant. That period is the same as that contained in the adjudicative referral, being from 1 January 2000 to 6 November 2000.

75 Next, the medical practitioner must establish that the absence of other medical services for his or her patients is as a result of the location of his or her practice and the characteristics of his or her patients. Both matters must be established. Therefore, for the reasons I gave in Oreb v Willcock, there are three matters which need to be established, and the second and third matters must be a consequence of the first. For the reasons already given, in relying upon reg 11(b), the medical practitioner does not have to establish exceptional circumstances.

76 If the medical practitioner establishes that there was an absence of other medical services for the medical practitioner’s patients during the relevant period, having regard to the location of the medical practitioner’s practice and the characteristics of the medical practitioner’s patients, then the medical practitioner must establish that those matters ‘affected the rendering or initiating of services’ by the medical practitioner.

77 Notwithstanding that the inquiry in reg 11(b) is in relation to the period during the relevant period, in the end result, the medical practitioner must establish that the matters established in reg 11(b) affected the rendering or initiating of services by the medical practitioner on the particular day or days being those days which it was said by the Committee to constitute the prescribed pattern of services in s 106KA(1).

78 It is only if the medical practitioner is not relying upon either of regs 11(a) or 11(b) that the medical practitioner must establish exceptional circumstances to discharge the onus falling upon the medical practitioner under s 106KA(2).

79 It would be wrong in considering whether any particular day or days should be left out of account because of the provisions of s 106KA(2) to simply address that by inquiring into whether exceptional circumstances existed. To approach the matter that way would, in my opinion, be to deny the terms of reg 11.

80 For the reasons already given, reg 11 provides other circumstances, apart from exceptional circumstances, which allows for the operation of s 106KA(2) if those circumstances are made out. Regulation 11 must be addressed separately from s 106KA(2) because the two paragraphs in that regulation describe precise and separate circumstances which are, by force of s 106KA(5), exceptional circumstances.

81 Her Honour was correct to conclude that the Committee erred in its approach to its task. She said that the Committee did not properly address the respondent’s claim of a shortage of medical practitioners and his reliance on reg 11(b). Her Honour said, and I agree, that the Committee ‘failed to apply Reg 11(b) in its own terms’.

82 The Committee proceeded upon the basis that the regulations really added nothing to the expression ‘exceptional circumstances’ in s 106KA(2). It did not have regard to the basis upon which the respondent put his case. Indeed, in addressing the respondent’s case, it headed that part of the reasons ‘Were there exceptional circumstances?’

83 Insofar as the respondent’s case relied upon reg 11(b), and I agree with Her Honour that was clearly the thrust of his case, for the reasons already given, the respondent did not have to establish that there were exceptional circumstances.

84 Rather, the respondent had to establish the three elements to which I have referred in reg 11(b) of the Regulations. If those three elements were made out and he established that those circumstances affected the services rendered or initiated by him on the particular day or days of the 37 days in question so as to reduce the days below 20, the respondent thereby discharged his onus.

85 In my opinion, the Committee was wrong in its construction of s 106KA(2) and reg 11. It also asked itself the wrong question and therefore fell into jurisdictional error.

86 It follows that the primary judge was right to quash the decision of the Committee.

87 Another matter arises and that is, whether, in the circumstances, it was appropriate to make an order not referring this matter back to the Committee comprising the same members from which the application for judicial review was brought.

88 Her Honour said in her reasons:

‘69 The directions of the Determining Authority and the finding of the Committee will be set aside. The initial referral however remains valid. It is a matter for the Director whether a different Committee would be able reasonably to make a finding of inappropriate practice. This may depend largely upon a consideration of the facts relating to the shortage of medical services in the area, which were not gone into by the present Committee. In these circumstances there should be orders remitting the matter to the Director to determine whether a referral to another, differently constituted, Committee should be made. The first and second respondents should pay the applicant’s costs.’

89 The matter is simply a factual inquiry to determine whether the elements of reg 11(b) have been made out. There was no suggestion made that the members of the Committee were biased or might be apprehended to be biased. There was nothing about the conduct of the inquiry or in the reasons of the Committee which would suggest any element of prejudgment. In my opinion, there was nothing about the matter at all which would prevent the same members of the Committee considering this matter upon her Honour’s remitter.

90 The respondent contended that the order should stand because her Honour had power to make the order. But that is not an answer. It is not a question of power, but of whether the order should have been made.

91 The respondent argued that there were significant legal errors in the way in which the Committee went about its task and therefore the Committee effectively closed its mind to the respondent’s case. The Committee did not have the benefit of a decision of this Court on the true construction of s 106KA(2) and reg 11. In those circumstances, its misunderstanding of the legislation may be more easily explained. The Committee was constituted according to the Act and charged with the responsibility of determining whether the respondent has engaged in inappropriate practice. The respondent does not contend that he has not engaged in services which constituted a prescribed pattern of services. The question to be answered by the Committee is simply whether the respondent has discharged his onus under s 106KA(2) so as to limit the number of days which might form part of the pattern of services in s 106KA(1).

92 On this matter, I have the misfortune to disagree with Her Honour. Her Honour did not identify or find any particular reason to remit the matter to a differently constituted Committee. In the absence of any such finding, I do not think it was appropriate to make the order.

93 In my opinion, the appeal should be allowed but only for the purpose of substituting for paragraph 3 as varied of the orders made by the primary judge an order:

‘3. The matter be remitted to the first respondent to determine Adjudicative Referral No. 297 in accordance with law.’

94 The parties have not been heard on the question of costs. The first appellant has 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 appeal be allowed.
2. Paragraph 3 of the orders made by Kiefel J on 30 November 2004 as varied on 15 April 2004 be set aside.
3. In lieu thereof there be an order that:

‘3. The matter be remitted to the first respondent to determine Adjudicative Referral No. 297 in accordance with law’.

4. The question of costs be reserved.
5. 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 eighty-eight (88) 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 Appellants:	Mr P Hanks QC, Ms S Brown
Solicitors for the Appellants:	Minter Ellison
Counsel for the Respondent:	Mr D O’Gorman, Mr J Harper
Solicitors for the Respondent:	Robertson O’Gorman
Date of Hearing:	18 May 2005
Date of Judgment:	16 September 2005