Willcock v Do [2008] FCAFC 15 (29 February 2008)

ADMINISTRATIVE LAW – where investigation by Professional Services Review Committees found inappropriate practice in relation to number of services rendered or initiated by medical practitioners – whether
exceptional circumstances under s 106KA(2) of the Health Insurance Act 1973 (Cth) – whether Committees erred in failing to address reg 11(a) of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) – whether practice management considerations relevant

Health Insurance Act 1973 (Cth) s 106KA
Health Insurance (Professional Services Review) Regulations 1999 (Cth) regs 11(a), 11(b)

Lee v Kelly [2005] FCAFC 197 cited
Oreb v Willcock [2005] FCAFC 196; (2005) 146 FCR 237 cited
The Queen v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR cited

SIMON WILLCOCK, GEORGE PEPONIS AND ROD MCMAHON (IN THEIR CAPACITY AS PROFESSIONAL SERVICES REVIEW COMMITTEE NO 293) & ORS v HIEN THANH DO

NSD 657 OF 2007

WAL GRIGOR, HEATHER KNOX AND PHILLIP KNOWLES (IN THEIR CAPACITY AS PROFESSIONAL SERVICES REVIEW COMMITTEE NO 295) & ORS v HUGO HUU HIEP HO

NSD 658 OF 2007

MANSFIELD, EMMETT AND MIDDLETON JJ
29 FEBRUARY 2008
SYDNEY

BETWEEN:

SIMON WILLCOCK, GEORGE PEPONIS AND ROD MCMAHON (IN THEIR CAPACITY AS PROFESSIONAL SERVICES REVIEW COMMITTEE NO 293)
First Appellant

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 OF PROFESSIONAL SERVICES REVIEW)
Fifth Appellant

AND:

HIEN THANH DO
Respondent

JUDGES:	MANSFIELD, EMMETT AND MIDDLETON JJ
DATE OF ORDER:	29 FEBRUARY 2008
WHERE MADE:	SYDNEY

3. In lieu of those orders, it be ordered that the proceeding be dismissed and that the applicant pay the respondents’ costs of the proceeding.

4. The respondent pay the appellants’ costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN:

WAL GRIGOR, HEATHER KNOX AND PHILLIP KNOWLES (IN THEIR CAPACITY AS PROFESSIONAL SERVICES REVIEW COMMITTEE NO 295)
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 OF PROFESSIONAL SERVICES REVIEW)
Fifth Appellant

AND:

HUGO HUU HIEP HO
Respondent

JUDGES:	MANSFIELD, EMMETT AND MIDDLETON JJ
DATE OF ORDER:	29 FEBRUARY 2008
WHERE MADE:	SYDNEY

3. In lieu of those orders, it be ordered that the proceeding be dismissed and that the applicant pay the respondents’ costs of the proceeding.

4. The respondent pay the appellants’ costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN:

AND:

HIEN THANH DO
Respondent

BETWEEN:

AND:

HUGO HUU HIEP HO
Respondent

1 I have had the benefit of reading the reasons for Emmett J. I agree with his Honour that the appeals should be upheld, and with the consequential orders which he proposes.

2 I gratefully adopt his Honour’s analysis of the Professional Review Scheme under the Health Insurance Act 1973 (Cth) (the Act), and his description of the issues at first instance and how they arose, and his description of the reasons for decision at first instance. I also largely agree with Emmett J’s reasons for upholding the appeal. There are a few observations I wish to add concerning certain issues raised on the appeal.

3 I agree with Emmett J that each of the Professional Review Committees No 293 and 295 did not approach their task on the basis that "exceptional circumstances" in s 106KA(2) of the Act or in reg 11 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) must be of an intermittent or episodic nature. The language used by each of the Committees indicates that each acknowledged that exceptional circumstances need not have that character. So much may be drawn from the use of the words "most likely", and the recognised alternative of a "predicable on-going situation" in their respective reasons, and their observation that it would be difficult to justify 80 or more professional attendances on one day on an on-going basis. Those observations come after each Committee identified the

possibility that only reg 11(b) might admit of ongoing circumstances as falling within exceptional circumstances, and an analysis of materials on the matter of construction. Hence, I agree that each Committee reached a view that exceptional circumstances for the purposes of the general words in s 106KA(2) and reg 11(a) may include an ongoing circumstance or circumstances.

4 The appellants acknowledged that neither of the Committees expressly referred to reg 11(a) in that part of its reasons under the heading "Consideration of Exceptional Circumstances". They also accepted that, if the respective Committees had not considered the matters referred to in reg 11(a) to see if exceptional circumstances were made out, they may have fallen into error: see per Lander J (with whom Black CJ and Wilcox J agreed) in Lee v Kelly [2005] FCAFC 197 at [24]; Oreb v Willcock [2005] FCAFC 196; (2005) 146 FCR 237 per Black CJ and Wilcox J at [13]-[14] and per Lander J at [180].

5 Clearly, each Committee was aware of reg 11(a). It is quoted in each of their reasons. At the conclusion of each of the Committee’s consideration of the "legal considerations", each expressly recognised that both s 106KA and the Regulations implement the view that it is most unlikely that 80 or more professional attendances can be rendered satisfactorily within one day, and that reg 10 allowing or tolerating such a level of services or up to 19 days in a 12 month period "acknowledges the exigencies of normal practice". Each recognised then that s 106KA(2) permits of exceptional circumstances justifying 20 or more such days. Each Committee then moved to consider the claimed exceptional circumstances.

6 In my view, each Committee did address the refined or extended circumstances contemplated by reg 11(a) in that process, even though neither in that part of its reasons expressly referred to the terms of reg 11(a).

7 In the case of Dr Do, Committee 293 first considered separately each of the five particular days he rendered 80 or more professional attendances and which he identified as having occurred in exceptional circumstances. In respect of each of those days, it concluded that the level of patient services apparently required was foreseeable, and that reasonable steps were available to accommodate that patient demand. I think those conclusions should be read as negating the availability of reg 11(a) to those circumstances. If a level of patient demand is found to be reasonably foreseeable, and that reasonably available steps could meet it without a particular doctor exceeding 80 professional attendances in a day, in my view the Committee should be taken to have concluded that there was no unusual occurrence causing an unusual level of need for professional services. That is the essence of the inquiry as to what is reasonably foreseeable and what might reasonably be done to accommodate it. Committee 253 also addressed the more general circumstances identified by Dr Do: the lawsuit; the partnership change and its consequences; the difficulty in getting another doctor as an employee; and what it called "corporatisation". It said that those circumstances could and should have been managed so as to limit patient numbers. Again, in my view, that reason indicates that it considered whether those circumstances could have fallen within the scope of reg 11(a). Also, in its findings, Committee 293 referred to paras 14-26 of a submission from Dr Do through his solicitor that his claims constituted exceptional circumstances. That submission expressly quoted, and relied upon, reg 11. The Committee must be taken by referring expressly to the submission, to be aware of and to have considered it.

8 In the case of Dr Ho, Committee 295 used similar forms of expression. Dr Ho identified several days when patient demand was high following a period when the practice had been closed. Its reasons are a little more laconic than those of Committee 293. After recording all the matters raised by Dr Ho, it simply concluded that they did not constitute exceptional circumstances. But it then addressed Dr Ho’s post-hearing submission. Its date ties that reference to a submission on Dr Ho’s behalf which also specifically quotes reg 11. In my view, that indicates Committee 293 was aware of, and considered reg 11, when considering if Dr Ho had made out exceptional circumstances. Moreover, its conclusion that the hours of Dr Ho’s practice were "both business and lifestyle decisions" and reflect a "long-term and ongoing practice" in my view indicate a consideration, inter alia, of the application of reg 11(a) to the circumstances. It also at that point in its reasons referred back to its discussion of the legal provisions, which included the express quoting of reg 11.

9 Emmett J has rightly emphasised the necessary causal relationship between the unusual occurrence and the unusual level of need for professional attendances. With one reservation, which I do not need to explore, I agree with his Honour’s view that the matters raised by Dr Do and Dr Ho in any event could not attract the shield of reg 11(a). The one reservation concerns the two days when Dr Ho said his partner went home ill so he had to deal with an abnormal number of patients. I am not sure that that circumstance would attract the shield of reg 11(a) for those two days. It is easy to conceive of circumstances, e.g. an accident on the way to work preventing a doctor from attending the practice, when a practice or a doctor might be called upon to treat a larger than anticipated number of patients. It is not clear, in those circumstances, that the unusual occurrence (assuming it to be so) will have caused an unusual level of need for professional services. The level of need for professional services of the practice will be the same. So, if the contention of Dr Ho in respect of those days is correct, in such a case reg 11(a) must mean an unusual level of need for professional attendances by a particular doctor. But that would appear to cut across the general claims of Dr Do and Dr Ho that the unusual level of need for professional services was that of their practice (albeit, as Committee 295 pointed out, a level of need arising at least in part from their decision to take on the patients previously treated by the doctor who left the practice). I note that reg 11(b)(1) refers to "the practice".

10 It is unnecessary to explore that question because its resolution would make no difference to the outcome of the appeal.

11 As I have said, subject to the above, I agree with the reasons for judgment of Emmett J and the orders which he proposes.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

BETWEEN:

AND:

HIEN THANH DO
Respondent

BETWEEN:

AND:

HUGO HUU HIEP HO
Respondent

12 Each of these two appeals, which were heard together, is concerned with findings of inappropriate practice on the part of a medical practitioner. The medical practitioners, who are the respective respondents to the appeals, carried on a general practice in partnership. The first appellants, who were members of professional services review committees, found that certain conduct on the part of the respondents constituted engaging in inappropriate practice within the meaning of the Health Insurance Act 1973 (Cth) (the Act).

13 Each of the respondent medical practitioners commenced a proceeding against the members of the relevant committee and other parties seeking declarations that certain provisions of the Act are invalid and seeking judicial review of the decisions of the committees. A judge of the Court made orders quashing the findings of the committees and prohibiting the first appellants from participating in any further committee concerning the respondents.

14 While there were separate proceedings in relation to each medical practitioner, the two proceedings were heard together, on the basis that the same issues are raised in each proceeding. Before dealing with the issues in the two proceedings and in the appeals, it is necessary to describe the statutory framework within which the issues in question arise.

15 Part VAA of the Act is concerned with the review of professional services provided by, among others, medical practitioners. The object of Part VAA is to protect the integrity of the Commonwealth Medicare benefits and pharmaceutical benefits programs and, in doing so:

• to protect patients and the community in general from the risks associated with inappropriate practice; and

• to protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice.
The Professional Services Review Scheme is a scheme for reviewing and investigating the provision of services by a person to determine whether that person has engaged in inappropriate practice.

16 Under s 83 of the Act, the Minister may appoint a medical practitioner to be the Director of Professional Services Review. Under s 84, the Professional Services Review Panel consists of practitioners appointed by the Minister. The Minister may, under s 85, appoint panel members to be Deputy Directors of Professional Services Review.

17 The Chief Executive Officer of Medicare Australia may, under s 86, request the Director to review the provision of services by a person during a period specified in the request. The Director must decide whether to undertake such a review. If the Director decides to undertake the review, the Director may review any or all of the services provided by the person under review during the review period. Following a review, the Director must:

• make a referral to a Professional Services Review Committee set up by the Director under s 93.

A referral to a Professional Services Review Committee initiates an investigation by the Committee into the provision of the services specified in the referral.

18 A Committee set up by the Director in connection with a referral consists of a chairperson, who is a Deputy Director, and two other Panel members. The chairperson and other Panel members must be practitioners who belong to the profession to which the practitioner belonged when the services were rendered. The person under review may challenge the appointment of a member of the Committee on the grounds that the member is biased or is likely to be biased or is likely to be thought, on reasonable grounds, to be biased.

19 The Act contains provisions regulating the proceedings of Committees. A Committee may hold a hearing at which evidence is given and documents are produced. The Committee must hold a hearing if it appears to the Committee that the person under review may have engaged in inappropriate practice in providing the referred services. The person under review is entitled to attend the hearing, to be accompanied by a lawyer or other adviser and to call witnesses to give evidence. The person under review is also entitled to address the Committee on questions of law and, after the conclusion of the taking of evidence, to make a final address to the Committee on questions of law, the conduct of the hearing and the merits of the matters to which the hearing relates.

20 If the Committee finds that the person under review has engaged in inappropriate practice, the finding is to be reported to the Determining Authority established under s 106Q of the Act. If a final report of the Committee is given to the Determining Authority, the Determining Authority must give the person under review a written invitation to make submissions about the directions that the Determining Authority should make as a result of the report. The Determining Authority must, after taking into account any such submissions, make a draft determination and give copies of the draft determination to that person under review and to the Director. The person under review may make submissions to the Determining Authority suggesting changes to the directions contained in the draft determination. If the Determining Authority has made a draft determination, the Determining Authority must, after taking into account any submissions made by the person under review, make a final determination in accordance with s 106U.

21 A determination by the Determining Authority must contain one or more of the directions set out in s 106U(1). The directions include the following:

• that any medicare benefit that would otherwise be payable for a service in the provision of which the person is stated to have engaged in inappropriate practice, cease to be payable;

• in the case of a practitioner, that the practitioner be disqualified in respect of the provision of specified services or the provision of services to a specified class of persons or that the practitioner be fully disqualified.

22 Section 106KA of the Act deals with inappropriate practice. Section 106KA(1) provides that if, during a particular period, the circumstances in which some or all of the referred services were rendered or initiated constituted a prescribed pattern of services, the person under review is taken to have engaged in inappropriate practice in providing those services. Under s 106KA(3), regulations may prescribe, in relation to a particular profession, circumstances in which services of a particular kind or description that are rendered or initiated constitute a prescribed pattern of services for the purpose of s 106KA(1). Under reg 10 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) (the Regulations), the circumstances in which services that are professional attendances constitute a prescribed pattern of services is that 80 or more such services are rendered on each of twenty or more days in a 12 month period.

23 However, under s 106KA(2), if the person under review satisfies the Committee that, on a particular day or particular days in the relevant period, exceptional circumstances existed that affected the rendering or initiating of services provided by the person, the person is not taken by s 106KA(1) to have engaged in inappropriate practice on that day or those days. Under s 106KA(5) the circumstances that constitute exceptional circumstances for the purposes of s 106KA(2) include, but are not limited to, circumstances that are declared by the Regulations to be exceptional circumstances. Regulation 11 declares that the following circumstances are 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 a relevant period, having regard to the location of the practice of the person under review and characteristics of the patients of the person under review.

24 From the beginning of 2000, Dr Hugo Huu Hiep Ho and Dr Hien Thanh Do were partners in a general medical practice conducted in Merrylands, in western Sydney. Prior to March 1997, Dr Ho and Dr Do, together with Dr Bao-Quy Nguyen-Phuoc worked in a Merrylands medical practice run by a Dr Wong. In March 1997, Dr Ho, Dr Do and Dr Nguyen-Phuoc established their own partnership practice in Merrylands. Dr Nguyen-Phuoc is Dr Ho’s brother-in-law. After the new practice was established, Dr Nguyen-Phuoc embraced alternative therapies that prompted large numbers of his patients to transfer to Dr Ho or Dr Do and the new partnership ended acrimoniously in December 1999.

25 When the partnership ended it had some 11,258 patients. Dr Nguyen-Phuoc took with him only about 909 of those patients. Dr Ho and Dr Do entered into a further new partnership to service the remaining patients and moved to a new location in Merrylands. They attempted to recruit medical practitioners to work as employees of the new partnership. A Dr De Souza agreed to work for them on a part-time basis, but declined an offer of full time work and left the practice in September 2000. Dr Ho and Dr Do were unable to attract a full time medical practitioner employee until November 2000.

26 In December 2001, the Chief Executive Officer of Medicare Australia requested the Director to review the provision of services by Dr Do and Dr Ho during 2000 on the basis that Dr Do had rendered a prescribed pattern of services between 1 January 2000 and 23 June 2000 and Dr Ho had rendered a prescribed pattern of services between 1 January 2000 and 6 November 2000. The Director established separate Committees to investigate and report on the conduct of Dr Ho and Dr Do. The Committees conducted hearings, prepared draft reports, received submissions in response to the draft reports and made final reports.

27 On 8 November 2002, Professional Services Review Committee Number 293 found that the conduct of Dr Do, in relation to the rendering of professional attendances on days identified as constituting a prescribed pattern of services within the referral period constituted engaging in inappropriate practice. On 13 November 2002, Professional Services Review Committee Number 295 found that the conduct of Dr Ho, in relation to the rendering of professional attendances on days identified as constituting a prescribed pattern of services within the referral period, constituted engaging in inappropriate practice. There was no dispute concerning the fact that the prescribed pattern of services existed. The question before both Committees was whether s 106KA(2) was engaged, on the basis that exceptional circumstances existed that affected the rendering of the services by Dr Do and Dr Ho.

28 Dr Ho and Dr Do commenced substantially identical proceedings in the Court seeking orders for review of:

• the decision of the chief Executive Officer of Medicare Australia to make a request to the Director under s 86 of the Act;

• the decision of the Director to set up Committees and to make referrals to the Committees under s 93 of the Act;

• the decisions, conduct, or action of the Committees in preparing and giving to the Determining Authority their final reports.
Apart from the Committees, which were the first respondent in each proceeding, the respondents to the proceedings were the Determining Authority, the Health Insurance Commission, the Director of Professional Services Review and the Acting Director of Professional Services Review.

29 The grounds of review in relation to each of the decisions included the ground that Part VAA of the Act is invalid and that various provisions of Part VAA are invalid. The grounds of invalidity concern questions arising under the Constitution.

30 In relation to the decisions of the Committees, Dr Ho and Dr Do relied on the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). The ADJR Act was invoked on two grounds. The first is that the Committees failed to have proper regard to the provisions of reg 11(a) of the Act. No reliance was placed on reg 11(b). The second ground is that the Committees exercised power in accordance with a policy without regard to the merits of the particular cases. Each of Dr Ho and Dr Do alleged that the Committees had regard to a policy of practice management rather than the merits of their particular cases and that the Committees gave overwhelming and impermissible emphasis and effect to a policy that Dr Ho and Dr Do should have invoked practice management.

31 On 13 July 2006, the primary judge made orders under Order 29 of the Federal Court Rules that the Constitutional questions be determined separately from and after the determination of the questions arising under the ADJR Act. There may be some question of the utility of such orders. Even if, as the primary judge determined, Dr Ho and Dr Do are entitled to relief under the ADJR Act, it would be necessary for the matters to be remitted for determination according to law under the provisions of Part VAA. However, if those provisions are invalid, there would be no point in remitting the matters. Thus, in any event, it will be necessary to determine the Constitutional questions.

32 On 26 March 2007, the primary judge made orders in each proceeding that the findings of the two Committees be quashed. On 28 March 2007, after further argument, his Honour ordered that the members of the Committees be prohibited from further constituting Professional Services Review Committees in relation to Dr Ho or Dr Do.

33 Having regard to the outstanding Constitutional question, that did not dispose of the proceedings. Nevertheless, on 9 May 2007, another judge of the Court ordered that leave to appeal be granted in each proceeding. Since it is necessary to determine the Constitutional questions, the desirability of granting leave may be doubtful; whatever is the result of the appeals, the Constitutional questions will still fall for determination. The justification for the grant of leave appears to be that the Constitutional questions have been raised in another proceeding in the Court involving Part VAA of the Act and it appears to be accepted that the result in that proceeding will determine the Constitutional questions in the present proceedings.

It appears to be common ground that the material under that heading is a standard form commonly set out in reports of Professional Services Review Committees. It was not suggested by Dr Do or Dr Ho that his respective Committee did not have regard to the material set out under the heading.

35 The material under that heading sets out the relevant provisions of s 106KA and of regs 10 and 11 and various legal considerations concerning their operation. The only parts of the material dealing with legal considerations that are in any way contentious are to the following effect:

• "Exceptional circumstances" are most likely to be of an intermittent or episodic nature rather than a predictable ongoing situation. The Committee does not see that some extreme ongoing circumstance is totally ruled out, although the general body of general practitioners would ordinarily expect a practitioner to manage the practitioner’s practice to bring patient attendance rates down to acceptable levels promptly such that proper clinical care can be provided to all patients.

• Section 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 within one 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 s 106KA(2) exceptional circumstances will be required to justify 20 or more days. Thus, the exception may be read as excusing lower standard services on particular days because of exceptional circumstances and it will be difficult to justify this on an ongoing basis.

36 Dr Do submitted to Committee Number 293 that there were exceptional circumstances in respect of five of the 56 days on which he rendered 80 or more professional attendances. Those days were 4 January 2000, 27 January 2000, 27 March 2000, 20 April 2000 and 26 April 2000. Four of the days were days following public holidays. The other day was a day following days on which Dr Do did not work because of a change of the premises from which the practice was being conducted.

37 In relation to 4 January 2000, Dr Do submitted that, following the Christmas and New Year closure, the practice reopened on 4 January 2000 with only two doctors and a large number of patients requiring attention. Committee Number 293 found that exceptional circumstances did not exist on that day. The Committee considered that the circumstances that existed were foreseeable and some effort could have been made to limit the number of patients seen by Dr Do on that day. For example, the Committee said, a triage system could have been established to ensure that patients with immediate healthcare needs were attended to; other patients could have been directed to another healthcare provider or scheduled to present to Dr Do at another time. The Committee observed that Dr Do did not present any evidence that he had developed or put in place an action plan to manage the increased patient demand on that day.

38 The Committee made similar comments in relation to the other four days. The Committee found that exceptional circumstances did not exist on any of the five days in question. The Committee did not believe that limited availability of medical practitioners in the practice, due to one of the partners leaving the practice in late 1999, constituted exceptional circumstances. The Committee referred to the fact that there were approximately 50 medical providers in the immediate area at that time and that patients unable to be seen by Dr Do would have had access to alternative medical practitioners. The Committee referred expressly to the fact that Dr Do illustrated his ability to limit the number of patients seen by providing patients with advance notice on 24 March 2000 that he would not be available on particular days.

39 Dr Do did not submit that there were particular exceptional circumstances on the 51 other days. However, Dr Do submitted that, throughout the referral period, there were circumstances that, coupled with patient demand, constituted exceptional circumstances. He claimed that those circumstances were a prolonged law suit by Dr Wong, the partnership difficulties with Dr Nguyen-Phuoc and the difficulty in engaging an employee doctor. The Committee considered that those circumstances could and should have been managed so as to limit patient numbers. The Committee did not consider that they constituted exceptional circumstances on a particular day or days. The Committee was not asked to, and did not, consider reg 11(a) in that context.

40 The Committee went on to say that Dr Do did not appear to understand the need to manage the number of consultations that he undertakes, regardless of demands from patients. While the Committee acknowledged that Dr Do seemed to feel a high sense of responsibility to see all patients that came to him, the Committee considered that he failed to recognise that he cannot take responsibility for all patients, no matter how caring and diligent he is. The Committee considered that the principle inherent in the legislation is that regularly seeing high numbers of patients inevitably compromises both patient care and the doctor’s ability to manage other aspects of his or her life, including personal health and family needs.

41 Professional Services Review Committee Number 295 recorded that Doctor Ho had rendered 80 or more professional attendances on 24 occasions during the referral period. Dr Ho did not provide any contrary evidence and did not dispute those facts.

42 Dr Ho submitted to the Committee that there were exceptional circumstances on all of the 24 days on which he rendered 80 or more professional attendances. He said that three issues affected his practice as follows:

• During 1999 and 2000 two court cases were conducted to settle different practice partnership disputes; one of those partners was his brother-in-law, Dr Nguyen-Phuoc, and that involved family stress.

• Dr Ho and Dr Do advertised for a full time doctor to join the practice from 27 March 2000 but were unable to recruit a suitable full time employee until 29 November 2000, when a doctor was finally recruited.

• Special consideration should be given to the pattern of some days within the 24 days, where there may be extraordinary circumstances.

43 First, Dr Ho outlined to the Committee the stressful partnership problems that he had experienced in two former medical practices between 1996 and 1999. In September 1998, Dr Nguyen-Phuoc commenced selling vitamins to his patients for a pyramid selling organisation. That resulted in many patients changing to Dr Ho or Dr Do. When Dr Nguyen-Phuoc left the partnership in December 1999, he left Dr Do and Dr Ho to service almost the same number of patients as had previously been serviced by three practitioners.

44 Dr Ho and Dr Do moved to new premises on 27 March 2000. In February, March, April, May and June 2000, they advertised for another doctor to join their new practice. They employed Dr De Souza on a part time basis from the end of March 2000, but that proved an unsatisfactory arrangement, as Dr De Souza worked a total of only 21 days up to the end of September 2000.

45 Dr Ho told the Committee that he worked long hours. Of the 24 days in question, 15 were Mondays, which tended to be the busiest in general practice.

46 Dr Ho also pointed out that the following four days, when over 80 patients were seen, occurred after the surgery had been closed for a number of days:

Three of those days were after public holidays. The other was after the practice moved to new premises. Dr Ho also identified two days when Dr Do went home sick during the morning and left him on his own.

47 The Committee recognised the stress to which Dr Ho was subjected during 1999 and at the beginning of 2000 and the difficulties posed by the fact that the partner who left the practice was his brother-in-law. The Committee also acknowledged Dr Ho’s claim concerning the stress associated with obtaining the services of another doctor. Nevertheless, having weighed all the evidence, the Committee did not accept that circumstances described by Dr Ho constituted exceptional circumstances on any of the 24 days when 80 or more services were rendered.

48 In its findings the Committee noted that most of the stressful circumstances described by Dr Ho were outside the referral period which commenced on 1 January 2000. Further, the Committee also noted that Dr Ho had not presented any additional evidence as to how he might have alternatively managed his patients, for instance, by limiting hours and initiating an appointment system, or by referring patients to other practitioners or hospitals in the area. Dr Ho told the Committee that, in retrospect, he could have handled the situation by saying no and refusing to see patients, but he just did not do so, because he felt it was more an ethical issue that he see his regular patients. The Committee considered that the circumstances described were part of a long term and ongoing practice. The Committee considered that the opening hours of the practice during the referral period were business and lifestyle decisions made by the partners in the practice and that, therefore, that did not constitute exceptional circumstances.

49 The Committee referred to Dr Ho’s assertion that there is no law against working hard and that there was no evidence that the services rendered on the relevant days or on any other day in the referral period were other than necessary, appropriate and competently rendered. The Committee recognised that those factors may be relevant to the task of the Determining Authority. However, the Committee did not consider that they constituted exceptional circumstances such as to excuse inappropriate practice by way of a prescribed pattern of services.

50 In his submission on the draft report by the Committee, Dr Ho asserted that more weight should be given to the difficulty that was experienced in attracting another practitioner up to November 2000. Dr Ho also asserted that the three days when he was alone at the surgery were circumstances that he could not have reasonably foreseen and were of an "intermittent or episodic nature". The Committee’s response was that, in its view, all practices must cope on occasions with ongoing resource limitations and must adjust their patient load accordingly, in order to maintain the quality of services.

51 Dr Ho and Dr Do supported the reasoning of the primary judge and did not, on the hearing of the appeal, seek to add significantly to his Honour’s reasoning. In essence, therefore, the appeals can be limited to consideration of his Honour’s reasoning and the contentions by the appellants as to errors in his Honour’s reasoning.

52 After referring to the two passages from the standard material described above, the primary judge said that the Committees, by asserting that the expression "exceptional circumstances" was to be seen as most likely to be of an intermittent or episodic nature, rather than a predictable ongoing situation, put a gloss on the meaning of s 106K(2) and, thereby, fell into error. His Honour considered that, by the passages in question, the Committees were making "the tail of the regulation wag the dog of the statute". His Honour considered that the view that the Committees took as to the management of the respective practices and the concentration on the episodic construction placed on "exceptional circumstances", resulted in the Committees’ failing to consider the combination of circumstances relied on by Dr Ho and Dr Do, either in the context of s 106KA(2) or reg 11(a). His Honour concluded that the Committees focussed on the examples codified in reg 11 as identifying what s 106KA(2) means.

53 His Honour considered that the passages adopted a test that the words "exceptional circumstances" do not convey and that the test of an "intermittent or episodic" situation, rather than a predictable ongoing one, is narrower than the natural and ordinary meaning of exceptional circumstances. His Honour considered that the real question was whether the circumstances relied on were, individually or in combination, such as formed an exception to the ordinary course of practice: those circumstances necessarily included the actual situation of the practitioner in question.

54 The primary judge considered that the question of whether or not the Committees correctly concluded that Dr Ho and Dr Do had not satisfied them that exceptional circumstances existed involved a question of mixed fact and law. However, the Committees, in his Honour’s view, applied an inappropriate legal test. His Honour considered that it was not appropriate to put a gloss on the words of reg 11(a) so as to confine the expression "an unusual occurrence’ to a particular example. His Honour considered that the words are of a general application and must be considered, for the purpose of reg 11(a), in respect of each situation that a practitioner asserts to be an exceptional circumstance. His Honour considered that the expression "an unusual occurrence" in reg 11(a) should not be confined to a singular event.

55 After examining the contentions of Dr Ho and Dr Do before their respective Committees, the primary judge then considered whether the Committees failed to consider or apply reg 11(a). The appellants accept that, notwithstanding the reference to reg 11(a) in the standard material, the Committees did not, in terms, consider reg 11(a). If a medical practitioner relies on s 106KA(2), the Committee must satisfy themselves as to whether the medical practitioner is relying on exceptional circumstances in its ordinary English meaning or within the meaning attributed to it by reg 11. If a medical practitioner does not articulate which of the provisions is relied upon, it may be that the Committee must itself enquire as to whether the factual circumstances advanced by the medical practitioner come within exceptional circumstances in its ordinary English meaning or within the extended meaning, if it is extended, of reg 11 (see Lee v Kelly [2005] FCAFC 197 at [24]).

56 The appellants contended that the primary judge erred in finding that, because the Committees did not address the application of reg 11(a), they failed to have regard to a relevant consideration or constructively failed to exercise jurisdiction. The primary judge found that Dr Do and Dr Ho raised circumstances that were capable of being considered as falling within reg 11(a), which the Committee needed to address. The appellants contended that his Honour erred in doing so. They said that the circumstances raised by Dr Do and Dr Ho were not capable of falling within reg 11(a).

57 The primary judge held that each of the Committees ignored the actual circumstances that existed. His Honour said that the Committees began their consideration of what confronted Dr Ho and Dr Do on 4 January 2000 as if they were able to apply practice management techniques so as to render no more than 80 services each on that day. His Honour considered that it was "not usual" to begin a new practice after a difficult partnership dissolution in which the two remaining partners must service, from the first day, over 90% of the patients of the practice that three partners had previously serviced, particularly when that day followed the New Year’s holiday closure. His Honour considered that it was not in the ordinary course, or regular, that a replacement doctor was not then available, or that market conditions at the time were such that replacements were harder than usual to find. His Honour considered that, if it were reasonable to seek to maintain the goodwill and professional approach of the practice while a search was made for a replacement, there would "quite possibly" be a higher demand on those practitioners by patients who had confidence in the then members of the practice.

58 The primary judge considered, therefore, that Dr Ho and Dr Do had raised circumstances that were capable of being considered as falling within reg 11(a): they had raised matters that might arguably have supported the possible application of reg 11(a). Accordingly, his Honour considered that the Committees failed to undertake their statutory function in so far as they failed to consider those circumstances in the context of reg 11(a): his Honour considered that they needed to address the applicability of reg 11(a) in terms, if they were to discharge their functions according to law.

59 His Honour considered that each of the circumstances relied upon by Dr Ho and Dr Do could have amounted to an unusual circumstance within the meaning of reg 11(a) either in itself or in one or more combinations: each circumstance could have been seen as causing an unusual level of need for professional attendances. Because the Committees did not address the application of reg 11(a) at all, his Honour considered that they had failed to have regard to a relevant consideration or constructively failed to exercise jurisdiction.

60 His Honour then considered whether the Committees had wrongly applied a policy that practice management ought to have met the circumstances in question. His Honour considered that neither Committee looked at the combination of factors, having regard to the statutory test in s 106KA(2), and that each committed an error of law in failing to do so. His Honour considered that the fact that a three person practice is, for a temporary period, reduced to two practitioners is capable of being an exceptional circumstance; it was not usual for a three-practitioner practice to have to service its patients with two practitioners. His Honour did not consider that it was to the point to say that practice management could change the situation.

61 The primary judge observed that a relevant consideration must be the nature of the medical practice, its client base, the need to maintain and build the goodwill of patients and the likelihood or not that the situation involving short staffing is to continue indefinitely. His Honour made observations about a practice that was not short staffed ordinarily being able to cope with an increased demand on a Monday in winter, which the practices of Dr Ho and Dr Do experienced. His Honour considered that such a practice, which temporarily lacked one doctor, but was making efforts to fill a vacancy, was capable of being considered as being subject to an unusual occurrence within the meaning of reg 11(a). His Honour considered that, if either Committee were to find that that was an unusual occurrence, there was a basis for the Committee also finding that that caused an unusual level of need for professional services, because of the unusual absence from the practice of another practitioner to treat those patients.

62 Dr Ho and Dr Do contended before the primary judge that, because the Committees focussed on practice management as a substantive answer to their reliance on exceptional circumstances, each Committee demonstrated an inflexibility of approach that would entitle a hypothetical fair minded lay person, properly informed as to the nature of the proceeding or process, reasonably to apprehend that each Committee might not have brought an impartial mind to making the decision. However, because his Honour considered that each Committee made an error of law in the approach adopted, he was not satisfied that an apprehension of bias would be perceived by the hypothetical fair minded lay person. There is no ground of appeal relating to that conclusion.

63 However, his Honour drew attention to the fact that the Committees took what his Honour characterised as the unusual course of contesting the case for relief by presenting a substantive argument (see The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-36). His Honour referred to the fact that other appellants may have been more appropriate parties to present substantive arguments. His Honour considered that the fact that each Committee had defended its own interpretation of the legislation and the dismissal of reliance upon exceptional circumstances would suggest to a fair minded lay person that the members of the Committee would find it difficult to put out of their mind entirely the approach that his Honour found to be erroneous, if they were to come to reapply to themselves to the task. Accordingly, his Honour made orders that the members of the Committees be prohibited from further constituting a Professional Services Review Committee in relation to Dr Ho and Dr Do.

64 There are four issues raised by the appeals. The first is whether the passages of the standard material referred to above demonstrate error. The second is whether the Committees erred in failing to address reg 11(a). The third is whether the Committees failed to address the merits of the respective cases and simply applied a policy of practice management. The fourth, which arises only if the appellants fail in relation to the first three issues, is whether the primary judge erred in ordering Prohibition.

65 I consider that it is clear enough that the relevant passages of the standard material express only a qualified view that exceptional circumstances are likely to be of an intermittent or episodic nature. Ultimately, it is for a Committee to determine whether circumstances advanced by a general practitioner should be regarded as exceptional, having regard to the usual operation of a general medical practice. In making such a determination, a Committee might be required to consider whether particular circumstances are foreseeable or avoidable and there is room for consideration of the way in which a particular practice is managed (see Oreb v Willcock [2005] FCAFC 196; (2005) 146 FCR 237 at [13]).

66 The passages do not assert an unbending rule. Rather, they attempt to explain what circumstances will most likely be regarded as exceptional. The passages follow immediately after referring to examples of exceptional circumstances given in the Explanatory Memorandum published in connection with the Bill for the Act that inserted s 106KA into the Act. That Explanatory Memorandum referred to unusual occurrences causing unusual levels of need for consultation services. That, of course, is the language of reg 11(a). I do not consider that the passages in question are indicative of an erroneous approach on the part of the Committees.

67 While reg 11(a) may not constitute an exhaustive definition of what constitutes exceptional circumstances for the purposes of s 106KA(2), Dr Ho and Dr Do did not advance substantive arguments in support of any contention that the circumstances relied upon by them did not constitute exceptional circumstances as that term would be understood in ordinary English. I do not consider that the Committees erred in their conclusion, after a consideration of the particular circumstances relied upon by Dr Ho and Dr Do, that those circumstances were not exceptional circumstances within the meaning of that phrase as it would be understood in ordinary English. The Committees are constituted by practitioners who must be taken to have brought to bear their experience and knowledge in relation to the conduct of general medical practices.

68 The contentions of Dr Do and Dr Ho emphasised the failure by the Committees to advert in express terms to reg 11(a) in their consideration of the circumstances relied upon by them. The primary judge, while referring in general terms to s 106KA(2) appears, on a fair reading of his Honour’s reasons, to have based his Honour’s conclusion on that contention, namely, the failure to have express regard to the language of reg 11(a).

69 Regulation 11(a) requires that two unusual matters be established. First, it must be shown that there has been an unusual occurrence. Secondly, it must be shown that there has been an unusual level of need for professional attendances. In addition, it must be shown that the latter, the unusual level of need, was caused by the former, the unusual occurrence. The appellants contend that, because the circumstances relied upon by Dr Do and Dr Ho were incapable of satisfying those three requirements, there was no error on the part of the Committees in failing to advert expressly to reg 11(a).

70 Public holidays, while they do not occur every week in New South Wales, occur regularly throughout the year. Furthermore, they are known well in advance. It was not suggested that Dr Ho and Dr Do did not know well in advance when the public holidays would fall in the first half of 2000. I do not consider that it would have been open to the Committees to find that public holidays constituted unusual occurrences within the meaning of reg 11(a).

71 The same conclusion would apply in relation to the absence from the practice by reason of illness of one of the practitioners. Illness, while it is not predictable, is not unusual. There was no suggestion that any instance of illness on the part of Dr Do or Dr Ho was out of the ordinary or so unexpected that it could be said to be unusual. It might have been possible, for example, for evidence to be adduced that the health of Dr Do and Dr Ho was such that the occurrence of illness was unusual. However, no suggestion to that effect was made to the Committees.

72 Further, the material before the Committee would not support a finding that the level of need for professional attendances following the public holidays or the illness of one of the doctors or the moving of the practice from one location to another, was unusual. There was no evidence before the Committees to indicate that the numbers of patients who attended after the occasions in question were different from what was usual or expected at the practice following a public holiday. There was no suggestion that the numbers of patients were unusual.

73 I do not consider that the material before the Committees was capable of supporting a finding that there was an unusual level of need for professional attendances caused by any unusual occurrence within the meaning of reg 11(a).

74 Both Dr Ho and Dr Do also relied heavily upon the departure of Dr Nguyen-Phuoc as constituting an unusual occurrence within the meaning of reg 11(a). Added to that was their difficulty in finding an employed practitioner to take the place of Dr Nguyen-Phuoc. I do not consider that, if a three person practice is, for a temporary period, reduced to two practitioners, that in itself is capable of being an exceptional circumstance. The conditions that flow from the departure of a partner are predictable and foreseeable.

75 Dr Do and Dr Ho were engaged in a partnership practice. Dr Do and Dr Ho were apparently prepared to take on Dr Nguyen-Phuoc’s patients, rather than suggest that they see another medical practitioner in the area. The material advanced by Dr Do and Dr Ho made no reference to any unusual level of need for professional attendances. The most that they said is that the two remaining partners wanted to keep all of the patients who were previously serviced by three partners. There was no suggestion that there was an unusual level of need for professional attendances beyond the number of patients who previously relied upon the practice. Accordingly, I do not consider that the circumstance of the departure of Dr Nguyen-Phuoc was capable of constituting an unusual occurrence causing an unusual level of need for professional attendances, on the basis of the material that was before the Committees.

76 Counsel for Dr Ho and Dr Do said that the Committees were obsessed with the notion of practice management. However, I consider that the Committees were doing no more than expressing views that the kinds of circumstances that arise from public holidays, from illness and from moving location of a practice are capable of being dealt with by appropriate management decisions. The Committees were saying no more than those sorts of difficulties are not unusual in any general medical practice. The Committees did not ignore the merits of the claims made by Dr Do and Dr Ho. I do not consider that there was any error on the part of either of the Committees in suggesting that the difficulties that arose from the circumstances relied upon by Dr Ho and Dr Do could be accommodated by appropriate management of their practices.

77 In the light of the earlier conclusions that I have reached, the question of whether the primary judge erred in ordering Prohibition does not arise.

78 Both appeals should be upheld. The orders made by the primary judge should be set aside. In lieu thereof, there should be orders that each proceeding be dismissed and that the relevant applicant pay the respondents’ costs. The appellants’ costs of the appeal should be paid by the respective respondents to the appeals.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

BETWEEN:

AND:

HIEN THANH DO
Respondent

BETWEEN:

AND:

HUGO HUU HIEP HO
Respondent

79 I have had the advantage of reading the reasons of Emmett J. I agree with his reasons and proposed orders.

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

Counsel for the Appellant:	PJ Hanks QC with RM Henderson

Solicitor for the Appellant:	Minter Ellison

Counsel for the Respondent:	M Robinson

Solicitor for the Respondent:	Tress Cox

Date of Hearing:	12 November 2007

Date of Judgment:	29 February 2008

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 657 OF 2007

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 658 OF 2007

JUDGES:	MANSFIELD, EMMETT AND MIDDLETON JJ
DATE:	29 FEBRUARY 2008
PLACE:	SYDNEY

Federal Court of Australia - Full Court

Willcock v Do [2008] FCAFC 15 (29 February 2008)