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Federal Court of Australia |
Last Updated: 18 February 2002
Tisdall v Health Insurance Commission [2002] FCA 97
ADMINISTRATIVE LAW - judicial review - medical practitioner - inappropriate practice - Professional Services Review Committee - procedural fairness - form of referral - jurisdiction of Committee - whether proposed findings in excess of jurisdiction - apprehension of bias - waiver of bias- duty to act fairly - whether delay is breach of duty - expert bodies - duty to disclose way in which expertise used to reach conclusion
Health Insurance Act 1973 (Cth) ss 81, 82, 83, 86, 87, 93, 95, 96, 97, 99, 102, 103, 104, 105, 106, 106A, 106F, 106L, 106R, 106S, 106T, 106V, 117, 119 and 124A
Veterinary Surgeons Act 1923 (NSW)
Retnaraja v Morauta [1999] FCA 80; (1999) 93 FCR 397 followed
Mercado v Holmes [2000] FCA 620 followed
Grey v Health Insurance Commission [2001] FCA 1257 discussed
Romeo v Asher (1991) 29 FCR 343cited
Minister for Health v Thomson (1985) 8 FCR 213 followed
R v Metropolitan Fair Rents Board; Ex parte Canestra [1961] VR 89 cited
Spurling v Development Underwriting (Vic) Pty Limited [1973] VR 1 followed
Roads Corporation v Dacakis [1995] 2 VR 508 discussed
Kalil v Bray [1977] 1 NSWLR 256 followed
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 cited
Pfizer Pty Ltd v Birkett [2000] FCA 303 discussed
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 followed
Tankey v Adams [2000] FCA 1089 followed
Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 followed
Aronson and Dyer, Judicial Review of Administrative Action, 2nd ed. at 419-425
PETER THOMAS TISDALL v
HEALTH INSURANCE COMMISSION AND ORS
V 849 OF 2000
TAMBERLIN J
MELBOURNE
15 FEBRUARY 2002
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
1. The application for review is dismissed.
2. The applicant pay the respondents' costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
JUDGE: |
TAMBERLIN J |
DATE: |
15 FEBRUARY 2002 |
PLACE: |
MELBOURNE |
1 This is an application for judicial review of findings made by the Professional Services Review Committee ("the Committee") under s 106L of the Health Insurance Act 1973 (Cth) ("the Act") which found that:
"...the conduct of ... Dr Peter Thomas Tisdall [the applicant] ... in connection with the rendering of services which were the subject of the referral from the Health Insurance Commission was, in the Committee's opinion, unacceptable to the general body of general practitioners practicing in general medical practice in Australia."
2 The application raises issues as to the scope of the inquiry, procedural fairness and the role of an expert tribunal.
THE LEGISLATIVE SCHEME
3 In order to determine these issues, it is necessary to consider the scheme under which the decision was made.
4 The Act establishes a Professional Services Review Scheme, the framework of which is ss 81 to 124A of the Act. The Act provides that the Health Insurance Commission ("the Commission") may refer to the Director of Professional Services Review ("the Director") the conduct of a person relating to whether the person has engaged in inappropriate practice in connection with the rendering or initiation of services (s 86 of the Act).
5 The present case is concerned with rendering of services. "Service" is relevantly defined in s 81(1) to mean a service for which, at the time it was rendered or initiated, a medicare benefit was payable, or there was a prescribing of a pharmaceutical benefit. Section 81(2) provides that for Part VAA of the Act, general medical practice is to be taken as a speciality by a medical practitioner.
6 "Inappropriate practice" is relevantly defined in s 82(1) as follows:
"82(1) A practitioner engages in inappropriate practice if the practitioner's conduct in connection with rendering or initiating services is such that a Committee could reasonably conclude that:(a) if the practitioner is a specialist - the conduct would be unacceptable to the general body of the members of the specialty in which the practitioner was practising when he or she rendered or initiated the services ..."
7 Under s 87 the referral must specify whether it relates to certain matters:
"87(1) The referral must specify whether it relates to one or both of the following:(a) specified services;
(b) services rendered or initiated by a practitioner that are one or more of the following:
(i) services of a specified class;
(ii) services provided to a specified class of persons;
(iii) services provided within a specified location;
(iv) services provided within a specified period."
8 The content and form of the referral by the Commission must comply with guidelines which the Minister is empowered to make about the content and form of the referral (see ss 87(2) and (3) of the Act).
9 Under s 83 the Minister may appoint a medical practitioner to be the Director of Professional Services Review.
10 The Director must set up a Committee to consider whether a person under review has engaged in inappropriate practice unless satisfied that there are insufficient grounds on which a Committee could reasonably find that the person has engaged in inappropriate practice in connection with the referred service or that the Director has disqualified the person under review (s 93). Neither of those circumstances apply in the present case. The Committee set up under s 93 is to be composed of a Chairperson who is a Deputy Director and two other Panel members. Under s 95(2) the Chairperson and the other Panel members must be, (i) practitioners, (ii) who belong to the profession in which the practitioner was practising, (iii) when he or she rendered or initiated the referred services. The constitution of the Committee can therefore be seen as one of peer experts in general practice, who were engaged in practice at the time the services were rendered. In the present case the Committee consisted of three experienced general practitioners. Two members had general practices in country areas and one member conducted a general practice in an outer suburban area.
11 There is provision in s 96 for a challenge to be made to the appointment of a Committee member on specified grounds. In the present case a challenge was made to the appointment of one of the Panel members, Dr Demediuk, but this failed. It was based on a submission that the doctor was likely to be biased, or that he was likely to be thought, on reasonable grounds, to be biased. A subsequent challenge to this refusal of disqualification was dismissed.
12 Under s 98, the Committee has wide power to regulate the proceedings at its meetings which must be held in private. It may for the purposes of its inquiries into referred matters inform itself in any manner it thinks fit (s 98(3)). Questions arising at meetings of the Committee are decided by a majority of votes of the Committee members present and voting; the Committee member presiding does not have a casting vote (s 99(5)).
13 The Committee must give notice of a hearing to the person under review at least 14 days prior to the hearing and, importantly for present purposes, it must give particulars "of the matter to which the hearing relates" (s 102 (3)).
14 The person under review is entitled to appear at the hearing and to be accompanied by a lawyer or other adviser, but is not entitled to be represented at the hearing by a lawyer or adviser (s 103). The practitioner is entitled to question any person giving evidence at the hearing and to address the Committee. The Committee has a discretion as to whether it will allow an adviser (other than a lawyer) of the person under review to question a person giving evidence at the hearing and to address the Committee on behalf of the practitioner.
15 Section 104 empowers the Committee by notice to require the person under review to appear at the hearing and give evidence to the Committee and to appear at the hearing and produce such documents as are referred to in the notice of hearing. If a practitioner knowingly gives a false or misleading answer or produces a document that contains a statement that is false or misleading in material particulars, without identifying the respects in which the person knows it to be misleading, a penalty is imposed. If the person does not produce documents referred to in the notice from the Committee and appears at the hearing, there are further penalties (s 105). The privilege against self-incrimination is available.
16 The regulation of the conduct of the hearing is within the discretion of the presiding member (s 106). The Committee is not bound by the rules of evidence but may inform itself on any matter in any way it thinks appropriate (s 106(2)). Evidence may be taken on oath or affirmation (s 106A). A penalty applies if a person appearing as a witness at a hearing without reasonable excuse refuses or fails to be sworn or make an affirmation or refuses to answer a question required by a Committee member to answer or refuses or fails to produce a document that is required for production.
17 Under s 106F(1) a Committee member has the same protection and immunity as a Justice of the High Court in the performance of his or her duty.
18 The Committee under s 106L must give the Determining Officer its final written report setting out its findings as to whether the practitioner was a specialist practitioner when the referred services were rendered and whether the practitioner's conduct in connection with rendering of the referred services was in the Committee's opinion unacceptable to the general body of the members of the speciality in which the practitioner was practising at that time. In this case members of the general body of general practitioners. The Determining Officer decides what steps should be taken on the report, and must give a copy of the final determination to the Director of the Commission.
19 The Determining Officer within seven days after receiving the Committee report must give a copy of the report to the practitioner under review (s 106R). Where the report contains a finding that the practitioner has engaged in inappropriate practice in connection with rendering or initiating of some or all of the referred services, the Determining Officer must make a draft determination and within 14 days of receiving the report from the Committee, give copies to the practitioner and to the Director (s 106S(1)). This draft determination must be accompanied by a statement inviting the person under review to make written submissions within 14 days, suggesting changes to the draft determination (s 106S(2)). Within that period the practitioner may make submissions to the Determining Officer. At the end of the 14 day period during which the practitioner may make submissions and within 35 days after receiving the Committee's report, the Determining Officer must make a final determination relating to the person under review (s 106T(1)).
20 The final determination must contain one or more specified directions ranging from reprimand and counselling to repayment of benefits and disqualification.
21 The final determination takes effect 28 days after the Determining Officer provides a copy of it to the person under review (s 106V(1)).
22 There is provision for review of the decision of a Determining Officer at the request of the practitioner. This request is made to the Minister who must forward the request to the President of the Professional Services Review Tribunal. Where a person makes a request for review of a determination, the person may appear in person or be represented by another person at the proceedings on the review and the representative is given the opportunity to address the Tribunal. Where the determination is a final determination, the Determining Officer may be represented at the proceeding (s 117(3)). The proceeding before the Tribunal must be conducted with as little formality and technicality as a proper consideration of the matter before the Tribunal permits and the procedure is within the discretion of the President (s 118). Under s 119 the Tribunal, after considering the matter to which the determination relates, may affirm or set aside the determination or make any other determination that the Determining Officer is empowered to make under the section.
23 In accordance with s 124A, a party to proceedings before the Tribunal may appeal, on a question of law only, to the Federal Court of Australia from any decision of the Tribunal in that proceedings.
24 "Professional service" is defined in s 3 of the Act as:
"a service ... to which an item relates, being a clinically relevant service that is rendered by or on behalf of a medical practitioner ..." (Emphasis added)
25 The word "item" is defined in s 3 as an item in the table. The word "table" is defined in that section as consisting of the general medical services table prescribed under s 4 which provides for regulations prescribing a table of medical services setting out the items of medical services and the amount of fees applicable in respect of each item together with guidelines for the interpretation of the table.
26 In this proceeding the item of central importance is item 23 which reads:
"LEVEL `B'
Professional attendance involving taking a selective history, examination of the patient with implementation of a management plan in relation to 1 or more problems, OR a professional attendance of less than 20 minutes duration involving components of a service to which item 36, 37, 38, 40, 43, 44, 47, 48, 50 or 51 applies.
SURGERY CONSULTATION
(Professional attendance at consulting rooms)
23 Fee: $24.50 Benefit : 75% = $18.40 85% = $20.85"
27 The expression "clinically relevant service" is also defined in s 3 as:
"a service rendered by a medical ... practitioner ... that is generally accepted in the medical ... profession ... as being necessary for the appropriate treatment of the patient to whom it is rendered."
28 In summary, a professional service rendered or initiated by a practitioner to an eligible person is one to which an item in the general medical services table relates and which is generally accepted as necessary for the appropriate treatment of the patient. The rendering or initiating of such a service attracts payment by the Commonwealth of a medicare benefit.
THE REFERRAL AND SUBSEQUENT HISTORY
29 The applicant commenced practice as a general practitioner in rural Victoria in 1965. On 2 September 1997 after a comprehensive investigation a written referral ("the Referral") was made by the Commission to the Director, who is the second respondent, with respect to the applicant's conduct in relation to whether he had engaged "in inappropriate practice" in connection with the rendering and initiating of services during the referral period which covered the calendar year 1996. The Referral included many pages of attached information.
30 Relevantly, the Referral is in the following terms:
"REASON FOR THE DECISION TO REFERThe Health Insurance Commission is concerned that the high total volume of services, services per patient and prescribing may be inappropriate, contain insufficient clinical input, or may not be reasonably medically necessary for the care of his patients.
The nature of this concern regards the professional quality of the services provided. ...
Health Insurance Commission concerns include:
1. High Volume of Rendered Services:
In the referral period 1 January 1996 to 31 December 1996, Dr Tisdall provided 27,686 services of which ... 22,602 were level B consultations (item 23) ... Dr Tisdall's services are above the 99th percentile of all active vocationally registered general practitioners in Australia (16,042 services). During this period Dr Tisdall provided between 61 and 80 services per day on 42 occasions, and between 81 and 100 services per day on 116 occasions, between 101 and 120 on 81 occasions, and between 120 and 140 on 11 occasions in his apparent average surgery working day. Time calculations based on the Entry Standards of the Royal Australian College of General Practitioners (RACGP) suggest that Dr Tisdall would have needed to spend between 10.2 and 23.3 hours of direct patient contact per surgery working day to provide quality care at a standard acceptable to the RACGP. The Health Insurance Commission believes that the appropriate level of clinical input may not be able to be maintained at this servicing rate on a regular and continuing basis.
2. High Average Number of Services per Patient
During the referral period Dr Tisdall provided 27,686 services to 4,359 patients. Dr Tisdall provided an average of 6.35 services per patient, which was more than the average services per patient provided by 97% of all active vocationally registered general practitioners in Australia. The Health Insurance Commission believes that some of the services rendered or initiated by Dr Tisdall may not be reasonably medically necessary for the care of his patients.
3. High Level of Prescribing.
During the referral period Dr Tisdall, with a total patient base of 4,359 patients, prescribed a total of 35,065 items under the Pharmaceutical Benefit Scheme, at a cost of $470,560.09 ... [reference made to prescribing rate of four specified items all substantially above the 99th percentile when compared with all medical practitioners in Australia]. The Health Insurance Commission believes the rate of prescribing of items, in particular codeine linctus, codeine phosphate with paracetamol, diazapam and prednisolone by Dr Tisdall may be inappropriately high.
For these reasons, the Health Insurance Commission has formed the view that Dr Tisdall's conduct in connection with the rendering and initiation of Medicare services may constitute inappropriate practice." (Original emphasis)
31 On 9 September 1997 the applicant provided written submissions in answer to the matters raised in the Referral. After a considerable lapse of time, on 12 February 1999, the Director set up a Committee consisting of the third, fourth and fifth respondents to consider whether the applicant had engaged in inappropriate practice. On 23 February 1999, the applicant challenged the appointment of Dr Demediuk to the Committee on grounds of bias. On the same day, the applicant also wrote to the Director requesting information as to the specific charges against him and as to the specific questions which the Committee would be asking him. The Director responded on 25 February 1999 advising that the challenge on the grounds of bias was not justified. In relation to the questions raised by the applicant, the Director informed him that the matter was in the hands of the Committee and that correspondence would be forwarded to the Committee for its consideration.
32 On 31 March 1999, the Committee gave a notice of hearing, which read as follows:
"PARTICULARS OF THE MATTER TO WHICH THIS HEARING RELATES:Person under review: Dr Peter Thomas Tisdall
Room 9, "Rodney Chambers"
178 Allan Street
KYABRAM VIC 3620
Referral Period: 1 January 1996 to 31 December 1996
This hearing concerns your conduct in relation to services rendered by you during the Referral Period, from your practice location in the State of Victoria. The issue to be determined is whether you have engaged in inappropriate practice in connection with the rendering of some or all of these services.
Particulars of the Committee's concerns as at the date of this notice are:
* whether you were able to provide an appropriate level of clinical input into the services rendered during the Referral Period, with particular reference to your rendering of the services covered by Medicare Benefits Schedule item 23; and
* whether the services that you rendered during the Referral Period were clinically relevant, that is, necessary for the appropriate treatment of the patients to whom they were rendered.
Further concerns may emerge during the hearing. You will be made aware of any other concerns that arise and will be given adequate opportunity to address them."
33 On 30 April 1999, the applicant wrote a letter to the Committee Secretary, with a twenty-five page attachment which included surgery details and references. The hearing commenced on 5 May 1999. On 26 May 1999, the Secretary again wrote to the applicant advising which patients would be discussed at the next hearing. On 9 June 1999, solicitors for the applicant wrote to the Committee seeking clarification as to whether it would be sending the applicant a letter outlining its concerns. In his response to the solicitors, the Committee Secretary explained that the Committee would put its concerns to the applicant after it had completed its review of the sample services. An outline of the opportunities for the applicant to respond to the Committee was also provided. On 15 July 1999, solicitors for the applicant wrote to the Committee giving further information confirming that the process would provide the applicant with an opportunity to present his case in full to the Committee. The second day of the hearing was 21 July 1999. Further information was sought on 3 August 1999 by the applicant's solicitors requesting reasons for the alleged determination by the Committee that the applicant had engaged in inappropriate practices.
34 On 6 August 1999, the Committee wrote to the applicant advising which patients would be discussed at the next meeting and seeking the production of documents previously requested. On 11 August 1999, the Secretary responded to the solicitors' letter of 3 August 1999 advising that no determination had been made and again outlined the process for the applicant to be informed of and provide submissions in relation to the Committee's concerns prior to any determination being made.
35 The third day of hearing before the Committee was 16 August 1999. Later in August 1999 the applicant submitted to the Committee a number of reports from specialist medical practitioners which were said to provide support for his case.
36 On 14 September 1999, the Chairman of the Committee advised the applicant as to the concerns held by the Committee and informed him that he could call witnesses and make further submissions orally or in writing but that written submissions must be received by 24 September 1999. This was responded to by the applicant's solicitors on 27 September 1999 enclosing copies of letters from a number of specialist medical practitioners.
37 On 4 October 2000, the applicant received from the Secretary of the Committee a copy of the draft report of the Professional Services Review Committee (the "Draft Report") together with information about the sampling methodology used to select the cases that were the subject of consideration.
38 A short period thereafter, the applicant's solicitors requested that the Committee should grant an extension of time until 30 November 2000 to provide submissions on his behalf in response to the Draft Report. This was granted. On 2 November 2000 an application was filed by the applicant for judicial review with a notice of motion for interlocutory relief. On 13 November 2000, Weinberg J adjourned the motion to enable the applicant to exhaust his opportunities to persuade the Committee that it ought not make findings adverse to him before the application for an interlocutory injunction was pursued. This was after the Committee had indicated to the Court that they would extend the period within which the applicant could make submissions to the Committee, by a further two months, to 31 January 2001. On 21 November 2000 the Committee confirmed its agreement to the extension of time and agreed to reopen its hearing to allow the applicant to make further oral submissions and to lead evidence.
39 On 25 January 2001 the applicant's solicitors wrote to the Committee's solicitors and requested an extension of a further two months to make written submissions. The respondents' solicitors replied that an extension was granted until 28 February 2001 to make further written submissions. It was confirmed that the applicant would be given an opportunity to make supplementary submissions within 14 days from the further hearing day. On 13 March 2001 the applicant's solicitors sent to the respondents' solicitors unsworn affidavits from a number of medical practitioners and requested an extension of time within which to provide submissions until 16 March 2001. On the latter date the applicant delivered detailed written submissions to the Committee.
40 In late March 2001, sixteen affidavits on behalf of the applicant, were delivered to the Committee and a further one day hearing took place on 28 March 2001. After this further oral hearing occurred, final written submissions on behalf of the applicant were delivered to the Committee.
41 On 1 September 2001 the applicant received from the Determining Officer the final report of the Committee ("the Final Report") which was dated 28 August 2001. Subsequently, on 11 October 2001, Weinberg J granted to the applicant leave to amend his application having regard to the Final Report.
42 At the current hearing of the application for review before me in December 2001, the applicant sought leave to amend the application for judicial review and this was granted.
THE COMMITTEE REPORT
43 The Final Report of 28 August 2001 is substantially similar to the Draft Report except for two variations in the Committee's findings in favour of the applicant with respect to the treatment of two patients. For reasons of confidentiality I will refer to services by the number identified in the summary of the Committee's findings with respect to particularised services.
44 The Final Report records that the Committee members were unanimous in finding that the conduct of Dr Tisdall in connection with the rendering of services, referred by the Commission, was unacceptable to the general body of general practitioners practising in general medical practice in Australia. The Committee found that with respect to fifty-two Medicare Benefits Schedule item 23 (Level B) services examined and reported on, Dr Tisdall had failed to provide an appropriate level of clinical input. In addition, the Committee found that his management of specific problems (for example, asthma) had been clinically inadequate. In particular, the Committee was concerned about the prescription of drugs, especially broad-spectrum antibiotics. The Committee found that Dr Tisdall's records were seriously deficient in important, often critical information. This was particularly so in relation to clinical findings.
45 The Committee's Final Report sets out the terms of the Referral and the reasons for the Referral. It describes the establishment of the Committee and actions taken by it and gives details of the pre-Draft Report hearings. The Report points out that the applicant was accompanied by another person and his legal adviser on the first day. On the second day he was accompanied by his secretary and legal advisers, Mr Smith and Mr Maitland. On the third day he was accompanied by his solicitor and his secretary. It records that the applicant was invited to address the Committee at any time throughout the hearing and request an adjournment if one was required. The Committee says it put its concerns to the applicant as appropriate during the hearing and these it said were summarised at the conclusion of the hearing. He was said to have been advised that he could make further oral submissions about matters which had been put to him and upon the conclusion of the last hearing day, the applicant indicated to the Committee that he did not wish to proceed with a further hearing day but would prefer to make written submissions. At the hearing on 28 March 2001 the applicant was accompanied by his legal adviser and counsel.
46 The Committee stated that it had closely examined the legal issues raised by the applicant in his final submissions in relation to natural justice and the appropriate form in which this requirement should be satisfied.
47 In Part B of the Final Report the Committee refers to the training and qualifications of Dr Tisdall and to his work in a rural Victorian town as a general practitioner since 1965. It sets out his working hours and some statistics relating to his services including the following:
"Practice organisation27. During the Referral Period, Dr Tisdall's hours at the surgery were Monday to Friday from 8.30am to 8.00pm, Saturday from 9.00am to 1.00pm and 7.15pm to 8.00pm, Sunday from 9.30am to 10.30am and 7.15pm to 8.00pm. He took 20 - 30 minute break for lunch. At the time of the Health Insurance Commission interview, Dr Tisdall had an average of 4 patients in hospital at any one time and was on call 24 hours per day for these patients. Dr Tisdall told the HIC medical adviser that he had a 15-minute morning ward round to assess and manage his patients (some patients are public and would not appear on Medicare statistics). He had one operating session of between 2-3 hours per week in which he performed a variety of surgical procedures. The Referral data indicated that Dr Tisdall provided between 61 and 80 services per day on 42 occasions, between 81 and 100 services per day on 116 occasions, between 101 and 120 on 81 occasions, and between 120 and 140 on 11 occasions.
Patient Services
28. In the Referral Period, 1 January 1996 to 31 December 1996, Dr Tisdall provided 27 686 services to 4 359 patients. Of those services, 22 602 were Level B consultations (MBS item 23) consultations. Pages 25-27 of Attachment 1 provide a complete breakdown of all services rendered by Dr Tisdall during the Referral Period. Attachment 1 also indicates that Dr Tisdall's total number of services was above the 99th percentile for all active vocationally registered general practitioners in Australia (16,042 services).
29. The Medicare benefit paid for the services rendered by Dr Tisdall during the Referral Period was $625,302.85."
48 The types of matters to which the Committee said it had regard included the Referral, oral evidence, material tendered at the hearing including clinical records and practice appointments, day book, Schedule to Medicare Benefits dated 1 November 1995 and Schedule to Medicare Benefits dated 1 November 1996. The materials also included submissions of 27 September 1999 on the applicant's behalf from his legal adviser and that of 11 April 2001, together with the actual hearing and material furnished at the special hearing on 28 March 2001.
49 In Part D of the Final Report, the Committee proceeded to consider the issues and legislation. Reference is made to the sampling procedure carried out to provide an appropriate selected sample of services. The Committee, when considering whether the applicant's conduct in connection with the rendering of the services may have been unacceptable, looked at the clinical context of the services examined and the clinical necessity of those services in the context of the applicant's overall management of his patients. It was concerned at his inability to provide the Committee with details of many of the services examined. It noted that Dr Tisdall had based his evidence in part on an attempt to reconstruct the service using his notes and his recall of what had occurred. The Committee said it took into account the period of time that had elapsed since the date of each identified service examined while it noted that he had no recall of the actual service and attempted to base his reconstruction on what he stated to be his usual practice.
50 In the opinion of the Committee, the evidence of his usual practice was not apparent from the medical records and was limited to his assertions. It considered that the applicant had based his evidence in many instances upon a statement of what his practice ought to have been rather than necessarily what it was at the time the service was rendered and found that it could give little weight to his evidence of what he asserted was his usual practice at the time of the service provided with respect to what had occurred on a specific occasion identified. In evaluating the evidence of the applicant, the Committee stated that it applied its combined experience, skill and knowledge with respect to his apparent general depth of knowledge. In addition, the Committee took into account what would have been appropriate practice at the time each service was provided in case what may be viewed as appropriate practice at the present time in similar circumstances may have altered in the interim.
51 The Committee expressed concern that the applicant did not know how long many of his services would have taken and it was concerned of the fact that he could not say whether any service would have taken more or less than five minutes. It noted that his evidence was that he did not look at the clock but it considered that a skilled and knowledgeable general practitioner would be able to form an opinion with respect to whether a service lasted less or more than five minutes. In the light of the clinical complexity which was apparent in the circumstances of the service under examination the Committee determined that some of the clinical complexity was overstated.
52 It noted Dr Tisdall's evidence and acknowledged that the descriptor of Level B (MBS item 23) service does not require a practitioner to spend any particular length of time with the patient. However, it was concerned that the applicant appeared to believe he could deliver the necessary clinical content of certain services in five minutes or less. It relied on its collective experience in believing that it would be extremely unlikely that the taking of a selective history, examining a patient, and implementing a management plan in relation to one or more problems to satisfy item 23 would be accomplished in five minutes or less having regard to the need for substantial clinical input being expected. In general terms, the Committee formed the view that any problem which could be dealt with in five minutes or less would necessarily be an obvious one and more likely to conform to the descriptor for a Level A (MBS item 3) service (that is a professional attendance for an obvious problem characterised by the straightforward nature of the task that requires a short patient history, and if required, limited examination and management).
53 The Committee was concerned that services billed as Level B (MBS item 23) lacked sufficient clinical content to satisfy the descriptor of this item. It considered that the applicant appeared confused about the clinical content of a "Level B consultation" and gave examples. The Committee considered that in many instances, if the applicant took any history at all, it was brief and not recorded. In addition, it considered that if an examination was performed it was probably cursory. In reaching these conclusions the Committee had regard to the specific services and patients examined in Appendix 1 to the Final Report.
54 Concern was expressed by the Committee that the applicant failed to formulate any coherent management plan in many of the instances of services identified, as referred to in the descriptor. In addition, he issued a prescription at almost every attendance examined, usually for more than one drug. The Committee considered that the general body of general practitioners of Australia would conclude that Dr Tisdall dispensed only episodic care in many of the identified services and that such conduct was unacceptable to that body.
55 The Committee referred to the "first round of hearings" where letters of support were provided from a number of specialist colleagues. The Committee did not consider that those specialists were cognisant of all the facts of the Referral or the details of the services in question, as was elucidated at the hearing during the inquiry into the mode of practice of the applicant. This indicated that they considered the material to be of limited use. The Committee accepted that the patient referrals made by the applicant to those consultants might have been medically appropriate but it gave little weight to what it described as "testimonials". It also referred to the final hearing day on 28 March 2001, after the Draft Report had been furnished, and noted that a large number of affidavits had been received from specialists. It said in its Final Report in relation to these specialist affidavits:
"The evidence contained in the affidavits, which was considered by the Committee in preparing this final report, commented specifically on the services examined in the first three sittings. This additional evidence enabled the Committee to further consider the clinical information relating to the services." (Original emphasis)
56 The Committee then turned to the results of the sampling and noted that the final random sample size was reduced to 73. Its findings in relation to each of the 73 services are set out in Appendix 1 together with reference to the evidentiary material and the reasoning.
57 The Committee said in paragraphs 62 and 65 of the Final Report:
"62. Accordingly, the Committee found that 52 services contained an insufficient level of clinical input to warrant the charging of a Level B (MBS item 23) service and in some cases, demonstrated Dr Tisdall's inappropriate management of certain conditions. The Committee therefore was of the opinion that Dr Tisdall's conduct in connection with the rendering of 52 out of a final random sample of 76 (0.684 rounded down to 68%) of those services examined would be unacceptable to the general body of general medical practitioners....
65. Therefore, the Committee's findings can be extrapolated to 57% (68%-11%) of all 22 602 MBS item 23 (Level B) services rendered by Dr Tisdall during the Referral Period." (Original emphasis)
58 Under the heading "Other concerns" the Committee said that the medical records had been seriously deficient in important, often critical, information essential for the proper management of patients and maintaining a continuity of care. In particular, it concluded that some of the medical records did not contain detailed information about each of the attendances sufficient to allow another doctor to carry out the management of the patient should the need arise. It acknowledged that while there was no legal obligation on the applicant to keep adequate clinical notes during the referral period, medical practitioners usually keep adequate and contemporaneous records of patient attendances to assist a practitioner in the management of patients by recording necessary information about medical history, medications, allergies and progress of current illnesses. In consequence where such medical records were absent, the Committee considered that a practitioner is obliged to rely on memory, and that this could impair a practitioner's ability to manage and provide medical services to patients. The Committee was cognisant that the touchstone was whether the conduct would be acceptable to the general body of general practitioners and not whether the conduct was "legal" or not. The Committee while expressing concern about the adequacy of the applicant's records said that it did not arrive at its findings solely on the basis of the records. Indeed, in most cases, it relied on the applicant's own explanations of his diagnoses, treatment and management of patients. Appendix 1 to the Final Report contained details of the Committee's findings in relation to services provided to seventy-four patients which provided the basis for its findings in the Report.
59 I will now address the specific issues raised in submissions at the hearing.
WAS THE REFERRAL OUTSIDE THE ACT?
60 The applicant first submits that the Referral related to matters outside the Act because it extended to matters beyond "conduct in connection with the rendering or initiating of services" within the meaning of ss 82 and 86 of the Act and that the inquiry and Report were therefore invalid.
61 The Referral, which covers some 295 pages, including attachments, is to inquire into the conduct of the applicant in relation to whether he has engaged in "inappropriate practice" in connection with rendering and initiating of services as defined by the Act, pursuant to s 86(1). The Referral specifies the services by reference to calendar year 1996 and gives reasons for the concerns which led to the Referral. The Referral in this case is within s 86 of the Act because the matter specified in that section is that of conduct relating to whether a person has engaged in inappropriate practice in connection with the rendering or initiating of services.
62 In the reasons for referral, the delegate of the Commission has given detailed particulars of the high volume of rendered services, the high average number of services per patient and the high level of prescribing. These matters are said to provide the basis for considering that there has been inappropriate conduct referred to in s 86. The three specific headings which are in the Referral together with the numerous annexures express the detailed concerns to be investigated only in so far as they constitute conduct in connection with the matters referred to in s 86. The attachments are part of the Referral: see Ratnaraja v Morauta [1999] FCA 80; (1999) 93 FCR 397, Mercado v Holmes [2000] FCA 620, on appeal [2000] FCA 1848. The concerns referred to in the headings, namely, the high volume of rendered services, the high average number of services per patient and the high level of prescribing, are not referred for investigation as conduct which is itself inappropriate in its own right but rather only in so far as they have the necessary connection with the rendering and initiating of defined services.
63 Accordingly, I do not accept the submission that the Referral in terms is outside power or invalid. It does not, in terms or substance travel beyond the provisions of the Act.
WERE PARTICULARS FURNISHED WHICH SATISFIED SECTION 102?
64 It is submitted for the applicant that the particulars given in the notice of hearing were not within s 102 of the Act in that they did not give the required particulars.
65 Section 102(3) requires that the notice must give particulars of the matter to which the hearing relates. This "matter" is that referred to in s 86, as outlined above. In considering whether the particulars are within the notice it is necessary to determine the "matter" to which the hearing relates.
66 It should be borne in mind that prior to the giving of particulars there has previously been a referral which had outlined in general terms the content of the concerns. The hearing particulars given in the present case specify the period and place during which and where the services were provided. The particulars in Schedule 2 to the notice of hearing inform the practitioner that the hearing concerns his conduct in relation to services rendered during the referral period. The notice of hearing incorporates the terms of the Referral comprising 295 pages in that it states that the hearing has arisen upon consideration of matters which are the subject of the Referral by the Commission to the Director of the Committee in accordance with s 93 of the Act and makes specific reference to the inquiry being in respect of inappropriate practice in connection with the rendering of the "referred services". Attached to the notice of hearing and Schedule is an extensive list specifying patients' names and addresses, their date of birth and the date of the service, in random selection order. The pages of detail are headed "Medicare, 100 Randomly Selected Services Rendered to Patients of Dr Tisdall P/N O24956 During 1 January 1996 to 31 December 1996 having Item 23 - Report in Random Selection Order". Dr Tisdall was therefore on notice of all the specific services proposed to be inquired into.
67 The concern expressed related to Level B (MBS item 23), set out earlier in [26] above.
68 The particulars update the Referral in relation to the concerns of the Committee. These are expressed to be, as at the date of the notice of hearing, (31 March 1999), whether the practitioner was able to provide an appropriate level of clinical input into the services rendered during the referral period with particular reference to the rendering of the services covered by item 23 and whether the services that were rendered during the period were clinically relevant in so far as they are necessary for the appropriate treatment of the patient to whom they were rendered. It should be noted that the particulars narrow the field for inquiry to services rendered during the referral period as opposed to the Referral which related to both the rendering and the initiating of services. The particulars also state that further concerns might emerge during the hearing and that the practitioner will be made aware of any other concerns that arise and be given an adequate opportunity to address them.
69 The expression "matter" is one of broad and general content which can cover a wide range of considerations. The breadth of the expression in the present context is reinforced by the requirement that the matter is one to which the hearing "relates". The word "relates" is also one of broad meaning. The concept of clinical input is a wide one. Accordingly, having regard to the above considerations I am of opinion that the particulars furnished with the notice of hearing were appropriate and sufficient to meet the requirements of s 102(3) of the Act.
WAS THE CONDUCT INVESTIGATED WITHIN THE REFERRAL AND PARTICULARS?
70 The submission of the applicant is that in its inquiry, the Committee went outside the terms of the Referral and the particulars. Specifically, the applicant contends that the Referral and particulars do not cover the following matters in respect of which the investigation was constructed and findings made:
* the quality of service;
* the necessity of the service;
* the appropriateness of diagnosis or treatment;
* the competence of the applicant as a medical practitioner or the extent of his knowledge or expertise;
* the sufficiency of the applicant's records;
* any questions as to whether or not the applicant provided a service or part of a service at all;
* the length of time spent by the applicant in providing the service.
71 The applicant submits that the Committee investigated matters that were beyond its jurisdiction and which were therefore irrelevant, being the subjects referred to above, and made findings as to those matters against the applicant upon which it relied in concluding that the applicant had engaged in inappropriate practice. A related submission is that, in pursuing the above matters, the Committee identified wrong issues and therefore acted outside jurisdiction.
72 To support the above submissions the applicant referred to the decision in Grey v Health Insurance Commission [2001] FCA 1257 where Finkelstein J decided that, in the circumstances of that case, having regard to the terms of the particular referral and the particulars, the Committee had inquired into matters which were not the subject of the inquiry. That decision is subject to an appeal to the Full Court.
73 After referring to the report of the Committee, the hearing and several particular services, his Honour said at [27] and [29]:
"The subject matter of the inquiry before the Committee is confined to whether Dr Grey had engaged in inappropriate practice by failing to provide appropriate treatment to his patients. The Committee is not charged with the responsibility of considering whether Dr Grey had rendered medical services that were not necessary for the care of a patient (sometimes known as over-servicing), whether Dr Grey had charged for services that he did not in fact provide, or whether Dr Grey had engaged in inappropriate practice by failing to keep proper records. It seems clear that, in inquiring into these matters, the Committee is going beyond its reference....
In this case, the Commission has identified as its areas of concern the high volume of services rendered by Dr Grey, and the possibility that with such a large workload he may not be able to provide proper medical treatment to his patients. That is the only subject matter of the referral, and the only issue which the Committee has jurisdiction to determine. The Committee is not entitled to delve into any other aspect of Dr Grey's conduct that might constitute inappropriate practice. Of course, other aspects of Dr Grey's conduct may require investigation if they have a bearing on the matter that is within the Committee's jurisdiction. But those matters can only be examined, if at all, as an incident of the main inquiry, and not as a separate subject. ..." (Emphasis added)
74 The conclusion of his Honour, as is evident from the above paragraphs, was that the Committee in that case, had embarked on an investigation of rendering unnecessary medical services, charging for services not provided, and failing to keep proper records, not as matters which were incidental to a consideration of the matter referred for investigation, but as giving rise to inappropriate conduct in their own right. His Honour recognised that the Committee might look into those aspects of the practitioner's conduct which could have a bearing on the matter which is within the Committee's jurisdiction but only as an incident of the main inquiry and not as a separate hearing of inappropriate conduct.
75 In the present case Counsel for the Commission submits that the inquiries were within the terms of the reference, which was broader than that in the Grey case and, in addition, the consideration of recording keeping, rendering necessary services and charging for work which had not been carried out were incidental and appropriate to consider when addressing the question posed. Alternatively, Counsel submits that Grey was wrong in law. In view of the difference of the facts in this case it is not necessary for me to express an opinion on this. Counsel for the Commission points out that in the present case the Commission did not find that charges had been made in respect of any item or circumstances where no work had been carried out.
76 In this case the Referral extended beyond the referral in Grey in so far as the concerns in that case expressed related only to the high volume of rendered services. In Grey, the referral did not express concern as to any of the services being rendered or initiated which were not reasonably necessary. The Grey referral did not refer to any concern by the Commission that the high rate of prescription of drugs might be excessive. In the present case these concerns were spelt out as being the reasons as to why the practitioner's conduct in connection with the rendering of medical services may constitute inappropriate practice. The Commission submits that the inquiries made in the present case were appropriate to determine whether the conduct of the applicant was within the language and substance of the particulars. It submits that inquiry into the quality and quantity of the services and the level of prescriptions was proper and reasonably incidental to enable the Committee to perform its function in making a determination as to the appropriateness of the conduct. The investigations made were incidents of the main inquiry and were not themselves independent inquiries into behaviour and non-performance in their own right. In the present case, for reasons given, I consider that the inquiries made did not travel beyond the Referral or the particulars and that the inquiries were sufficiently related to the principle function of the Committee.
77 Both the Referral and the particulars make reference to the notion of "clinical input". This is a wide, undefined expression capable of including quantity, quality and the need for, or appropriateness, of the service in respect of which a claim is made. So long as there is this nexus with the subject matter of the inquiry it is open, in my view, for the Committee to make inquiry into these matters. It is helpful to consider some specific examples of particular services set out in Appendix 1 to the Final Report.
SERVICE NO 1
78 The Committee's findings are to the following effect:
"Male, aged 46. The clinical record stated: `Severe low back pain. Panadeine forte piroxicam.'...
Dr Tisdall said he did not know how long the history and examination would have taken him. He did not know whether there had been a history of trauma. He said he did not know what he actually did on this occasion 3 years ago and could not tell from his notes. Dr Tisdall based his responses on what he thought he would have done.
...
The Committee was aware from its own experience that a complaint of low back pain required an extensive examination, including a neurological examination.
The Committee would also expect significant details of the history, such as whether there had been any precipitating event and that the distribution and the quality of the pain would be recorded. The failure to record such essential information was unacceptable. Knowledge of some pre-existing history may supplement this but is not an acceptable substitute for it.
The Committee did not accept Dr Tisdall's assertion that he had spent time taking a history of the back pain and doing a relevant examination but had failed to record a single detail of this. It formed the opinion Dr Tisdall had handled the presentation in a cursory manner, had not taken an adequate history, had not examined the patient adequately, had not reached a working diagnosis and had not formulated an appropriate management plan. His approach was simply to order an x-ray. In the Committee's opinion, the service lacked the clinical content required of an Item 23 service and that Dr Tisdall's conduct in connection with the rendering of the identified service would be unacceptable to the general body of general practitioners." (Emphasis added)
79 The reference to lack of clinical content is directly related to the content of the item 23 service descriptor which indicates what is involved by way of clinical input to this item. This last quoted paragraph and conclusion indicates that the absence of notes was taken by the Committee to point to a conclusion that Dr Tisdall had not spent the required time taking an adequate history of the back pain and doing a relevant examination. This lack of information is related to the nature and extent of the clinical input and was used by the Committee as a factor in its conclusion that the service lacked the clinical content of an item 23 service. The lack of input was also a factor in the Committee's further conclusion that the conduct in connection with the rendering of this service would be unacceptable to the general body of general practitioners. The Committee's findings accord with the function assigned to it under the terms of reference. The lack of notes is not in itself treated as inappropriate conduct.
SERVICE NO 11
"Male, aged 42. The clinical record stated: `Extracted tooth this am dentist. Given Keflex caps. Now severe infection - IM Lincomycin. Can't take codeine-Dymadon'. Dr Tisdall said that he took the history. He looked in the patient's mouth and saw the extraction site was red.
...
The Committee was aware, as Dr Tisdall should have been, that Lincomycin
was a drug with specific indications for its use and with potentially serious
side effects. To use it in this situation and in this inappropriate manner, where
there was absolutely no clinical justification, was a serious error.
The Committee concluded that Dr Tisdall had attended this patient but did not make an adequate or accurate assessment of what was post-extraction dental pain. He did not formulate an adequate management plan in any sense. In addition, he had administered an inappropriate treatment in an inappropriate manner.
After considering all the evidence, the Committee concluded that Dr Tisdall apparently lacked the skills and knowledge necessary to diagnose the patient's condition and to carry out the item of service claimed on the occasion identified. In the Committee's opinion, the service lacked the level of clinical input required and that Dr Tisdall's conduct in connection with the rendering of the identified service would be unacceptable to the general body of general practitioners." (Emphasis added)
80 The finding of the Committee that there was "absolutely no clinical justification" goes directly to the nature and extent of the clinical input in an item 23 service. It forms the basis of the Committee's conclusion that Dr Tisdall did not make an accurate assessment of the patient's condition. It also relied on the conclusion that no sufficient management plan had been prepared and this also was relevant to whether the item 23 descriptor was satisfied and whether the applicant had engaged in the relevant conduct in treating the service as an item 23 matter. The reasoning discloses the required nexus.
SERVICE NO 6
"Male aged 1 year. The clinical record stated: `Nappy rash - Canesten, 2% ichthyol in zinc Cream. LOM EES Dymadon'. Dr Tisdall said that the baby had a nappy rash associated with thrush. ......
Dr Tisdall agreed the Antibiotic Guidelines did not indicate EES was an appropriate drug for managing otitis media. ... The Committee considered that Dr Tisdall [sic] rationale for the treatment of otitis media with antibiotics was inadequate.
Dr Tisdall said he did not know whether the child's parents smoked but admitted this could be a relevant factor in recurrent otitis media.
The Committee determined that Dr Tisdall lacked adequate knowledge of causes of nappy rash, especially in regards the contributory causation that antibiotics would play in its exhibition and maintenance in an infant or young child.
The Committee did not find credible Dr Tisdall's assertion that he had conducted a full examination of the child's throat, chest and cervical nodes but had failed to record a single detail. The Committee was of the view that Dr Tisdall did not show adequate regard for the formulation of a coherent management plan for the diagnosis and treatment of this young patient on this occasion as he ought to have done.
In the Committee's opinion, the service lacked the level of clinical input required when rendering an Item 23 service and that Dr Tisdall's conduct in connection with the rendering of the identified service would be unacceptable to the general body of general practitioners."
81 In its evaluation of the service rendered to the patient, the Committee is again directing its attention to the nature and extent of the clinical input, both qualitative and quantitative. It is relevant to this consideration that Dr Tisdall did not investigate whether the child's parents smoked. It was also relevant that Dr Tisdall could not provide the appropriate treatment because he lacked adequate knowledge in the view of the Committee. The Committee did not accept his assertion as to the carrying out of a full investigation because there was no record to evidence it. The Committee also found there was no coherent management plan for the diagnosis and treatment of the patient. This again goes to clinical input. These matters considered in the Report in relation to this service show that the Committee directed its attention and linked the facts and its inferences to the descriptor of an item 23 service. In my view, the matters examined were relevant and within the terms of the Referral and the particulars.
82 There are many other services referred to but it would be repetitious and unnecessary to examine each particular item to determine whether it is within the descriptor because, in my view, having regard to the Report in relation to the specific services I am satisfied that in relation to each of the services, the matters considered were relevant and within the functions and role assigned to the Committee both within the particulars and within the Referral. It is evident from the language of the Final Report that the Committee did not treat the failure to keep records, for example, in itself sufficient justification to arrive at its findings. Rather, the Committee took this into account as a relevant factor and in my opinion, it was entitled to adopt this approach and to inquire into this matter. This is an important distinction from the circumstances before the Court in Grey.
83 For these reasons, I do not consider that the Committee investigated or considered matters outside the terms of either the Referral or the particulars of hearing. Nor am I persuaded that the Committee investigated matters outside its jurisdiction.
EVALUATION OF EVIDENCE
84 A number of submissions were made by the applicant which relate to the way in which the Committee considered or failed to consider the evidence. They also include claims that the Committee failed to have regard to uncontradicted evidence and also ignored evidence. They also include findings that were unsupported by evidence or simply based on matters not disclosed. These submissions call for a consideration of the extent to which and, the way in which, an expert tribunal should act in its consideration of material before it.
THE ROLE OF THE COMMITTEE AS AN EXPERT BODY - NEED FOR DISCLOSURE
85 The Committee in this case was comprised of "experts" who in terms of the Act are "specialists" in the field of general practice which is under consideration. In accordance with the Act, the three members of the Committee were also practitioners in the profession in which Dr Tisdall was practising at the relevant time when the referred services were rendered. As mentioned earlier they were general practitioners, two being country general practitioners as was the applicant and the other member being a suburban general practitioner.
86 The proceedings before the Tribunal are not curial or adversarial in the strict sense but they have a strong inquisitorial element. In terms they are in the nature of an inquiry into expressed specific "concerns".
87 The legislative provisions relating to the Committee have been set out earlier. They point away from the normal characteristics of a curial inquiry. The Committee is obliged to conduct an inquiry if, after considering the matters which comprised the subject of the referral, it considers that the person under review may have engaged in relevant inappropriate practice. This contemplates that the Committee would have given some prior consideration to the concerns expressed before a hearing is convened and formed a tentative view. There is no right of representation, legal or otherwise, but there is a right with the consent of the Committee for a non-lawyer to be present and question a witness or address the Committee. The Committee can require the practitioner to appear and produce documents. The rules of evidence do not apply and the Committee can inform itself in any way that it thinks appropriate.
88 These provisions are indications that the power being exercised is essentially administrative in character.
89 An important issue raised in the applicant's submissions concerns the extent to which an expert tribunal is entitled to rely on its undisclosed use of its expertise and experience in accepting or rejecting material placed before it. Specifically, for example, it is submitted that the Committee had rejected the sixteen affidavits from specialists not in general practice, produced in response to the Draft Report, and that in so doing, the Committee should have answered questions and given Dr Tisdall particulars of those aspects of their expertise and experience relied on to reject this evidence. The Committee, it is said, should have given him an opportunity to meet with evidence, documents and arguments, the reasoning and use of expertise on the part of the Committee members which led them to "reject" these further affidavits. It is also submitted that the treatment of this material in the Report of the Committee is cursory and non-informative.
90 In the Final Report, in paragraphs 56 and 57 the Committee says:
"Letters from Specialist Colleagues56. During the first round of hearings, Dr Tisdall submitted letters of support from a number of specialist colleagues. The Committee did not accept that those specialists were cognisant of all the facts of the Referral, the details of the services identified and what was elucidated at the hearing regarding the mode of practice of Dr Tisdall. It would accept that the patient referrals made by Dr Tisdall to those consultants might have been medically appropriate. However, with regard to the question posed by the HIC Referral, the Committee could give but little weight to such testimonials.
57. In his submissions to the Committee on 28 March 2001, Dr Tisdall again provided a large number of affidavits from specialists. The evidence contained in the affidavits, which was considered by the Committee in preparing this final report, commented specifically on the services examined in the first three sittings. This additional evidence enabled the Committee to further consider the clinical information relating to the services." (Original emphasis)
91 In support of these submissions the applicant referred to the Full Court decision in Romeo v Asher (1991) 29 FCR 343. In that case the Court observed that the role of a Medical Services Committee was an investigatory one and that it was not for the Court to tell a Committee how to conduct its inquiry. The Court stated that the Committee must afford procedural fairness to the person whose conduct was under consideration. It was also observed that the Committee in that case was entitled to bring to bear its own expertise and experience in reaching its conclusions. On this latter aspect, Morling and Neaves JJ at 349, quoted the statement of Fox J in Minister for Health v Thomson (1985) 8 FCR 213 at 217, which reads:
"It is not disputed that the committee is one of experts ... [i]t seems reasonably clear that the intention of the Act is that the committee sit as a committee of the peers of the medical practitioner whose conduct is in question and exercise its own judgment in relation to the evidence before it, using its own collective knowledge in its evaluation.There are many authorities which hold that such a Committee can act on its own view, and can do so without disclosing those views to a person appearing before it. ..."
92 These observations of Fox J, in my view, are pertinent to the present case where the Committee is comprised of a medical peer group of the applicant and is making a finding based on the opinions of practitioners. There is no requirement to disclose the thinking processes used in making an evaluation of the conduct and weighing the evidentiary material.
93 Morling and Neaves JJ, stated at 349 in Romeo that where the Court concludes that a Committee has made factual findings adverse to a practitioner, and where on a fair examination of what has occurred, the applicant practitioner has had no real notice of those matters at the hearing and has not had any real opportunity to comment, there will be a breach of the principles of procedural fairness.
94 In the present case Dr Tisdall contends that he was not afforded procedural fairness. He submits that the Committee must have had regard to matters not disclosed at the hearing. In this matter, it is said that the Committee did not accept the evidence in the affidavits filed after the Draft Report. The reasons for the rejection of these affidavits, it is said, were not disclosed by the Committee thus giving rise to a breach of procedural fairness and the evidence must have been rejected on grounds of information not disclosed.
95 In my view this line of reasoning is not correct. The passages quoted in [90] above made by the Committee in relation to this material discloses that it gave attention to the affidavits and had reservations about the utility and weight to be given to this material. It does not follow that the evidence was rejected as distinct from having been considered and given little weight. The Committee is not bound to accept the additional evidence but it must consider it. There is cogency in the respondent's submission that the deponents were for the most part specialists and not general practitioners. The Committee could not be confident as to the extent to which they were appraised of all relevant circumstances or as to what had transpired at the earlier hearing. A number of them had furnished letters and material to the Committee prior to the Draft Report. In these circumstances, the weight to be given to this material was a matter of evaluation for the Committee and it is not one for this Court. Even where the material is uncontradicted, there remains a question of evaluation as to its importance and weight in balancing the countervailing considerations and this is for the Committee and not the Court on review.
96 It is of course a well-settled principle of administrative law that where a tribunal obtains specific material or information on which it relies to reach its decision without disclosing that material to the party adversely affected, there may be a breach of the requirement of procedural fairness. The circumstances that the tribunal is not bound by the laws of evidence and can obtain such information as it considers appropriate exclude the duty to disclose the material: see R v Metropolitan Fair Rents Board; Ex parte Canestra [1961] VR 89 at 91-93 and authorities there cited.
97 The extent to which an expert tribunal can use its own expert knowledge was considered by Stephen J in Spurling v Development Underwriting (Vic) Pty Limited [1973] VR 1 at 9-10. That case involved a challenge to a decision of an expert town planning body. His Honour considered that there was little clear authority on the obligation of expert tribunals to disclose their own accumulated store of experience as distinct from specific sources of information such as reports of inspectors, personal inspections, and the like. At 10 his Honour said:
" ... I say only that I would adopt the view ... that where only general expert knowledge of an expert tribunal is in question there need not be disclosure of that expert knowledge to parties in order for the hearing to be fair in the sense of complying both with the requirements of natural justice and with the terms of ...the Town and Country Planning Act - `the experience of an expert tribunal such as this, is part of its equipment for determining the case': R v City of Westminister Assessment Committee [1941] 1 KB 53, per du Parcq LJ at p 69 ......
I would not myself have concluded that non-disclosure of the sort of experience referred to in the Tribunal's reasons (if interpreted as referring to the experience of the Tribunal itself) involved any breach of ... the Act or of the requirements of natural justice."
98 These statements were obiter because His Honour, in fact, formed the view that the Tribunal was relying on the evidence and not its own expert knowledge and experience. The reasoning nevertheless provides some useful guidance as to an appropriate approach.
99 In these passages his Honour draws a distinction between the general experience and expertise used to evaluate material before the expert Tribunal, in contrast to the obtaining of specific material or facts which are then relied on by the expert Tribunal to reach a decision. In the former case, the better view seems to be that disclosure is not required but in the latter case where there are specific sources of information or particular, specific, experience called into play, disclosure may be necessary. The generalised nature of the experience of the members of the Tribunal in that case is set out in the judgment. By particular information or exposure I am referring to some matter, thing, observation or knowledge which would not be apparent to a party as part of the general expertise or experience of a member. For example, in a town planning case, independent personal knowledge of the activities carried out at a particular site where a question of "existing use" is in contest could amount to particular specific relevant knowledge of which the parties may normally be unaware. If such knowledge were reflected in the decision without first alerting the parties there could be a breach of procedural fairness requirements.
100 The observations of Stephen J were applied by Batt J in Roads Corporation v Dacakis [1995] 2 VR 508 at 529-530. In that case it was not necessary for his Honour to consider the question as to the use of general expert knowledge because in his view the Tribunal had not used its expertise to supplant or contradict the evidence. However, he said that if he had concluded that such knowledge had been used then it must have been specifically referable to the land in question and therefore was not within the realm of general expert knowledge so that disclosure should have been made. That is in sharp contrast to the circumstances in the present case, where there is no indication whatsoever that the Committee had used its expertise to contradict evidence apart from speculation.
101 There is a useful statement of principle by Street CJ in Kalil v Bray [1977] 1 NSWLR 256 where his Honour, with whose reasoning Moffit P and Glass JA agreed, said in relation to an expert disciplinary tribunal under the Veterinary Surgeons Act 1923 (NSW), at 261:
"The tribunal is in truth an expert panel, and as such it needs no expert evidence on matters within its particular field of expertise, that is to say, the field of veterinary science. Its function is to determine in the light of factual evidence, with or without supplementation by expert evidence, the proper veterinary conclusion to be drawn from such objective facts as may be established by the evidence, bearing in mind at all times that its function is essentially, as its name imports, disciplinary. It provides a veterinary surgeon facing a charge with a forum constituted in the majority by his professional peers and supplemented, in the interests of natural justice, with judicial chairmanship."
102 At 262 his Honour continued:
"The purpose of setting up the tribunal, with its membership drawn from the ranks of veterinary surgeons, is to enable it to do the very thing that either a Bench of justices or a jury may not do, that is to say, to draw upon its own expert resources to resolve such questions of expert science as might emerge from the objective, or lay facts proved in evidence before it. In doing so it will, no doubt, give due weight to such expert evidence, if any, as may be placed before it. But the ultimate responsibility for forming an expert view upon which the disciplinary powers will be exercised or withheld is with the tribunal itself. This is a responsibility to be discharged by drawing upon its own internal resources of knowledge of veterinary science."
103 Of course, the Committee in the present case is not a disciplinary body but its findings are of a serious nature which could have a substantial impact on the livelihood of a practitioner under investigation. The approach taken by Street CJ are apposite to the present case.
104 The applicant also submits that the Committee failed to consider the evidence on the basis of the higher level called for in matters where serious consequences flow from a determination: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-363. In the present case there is no evidentiary basis for an inference that the Committee was unaware of the seriousness of the allegations and failed to approach the matter on a Briginshaw basis. By their extensive experience as general practitioners they could be expected to be cognisant of these considerations.
105 The duty of disclosure by an expert tribunal is discussed and examined in detail in Aronson and Dyer, Judicial Review of Administrative Action, 2nd ed. at 419-425 and the cases there cited. They say at 425:
The difference between identifying critical issues to be addressed, and disclosing mental processes and proposed conclusions, is one of degree only. But it would appear to be a significant distinction nevertheless."
I agree with this observation. It is normally sufficient to identify central issues to the parties affected and it is not usually necessary to explain or disclose the thinking process.
106 The question of disclosure by experts was considered by Mathews J in Pfizer Pty Ltd v Birkett [2000] FCA 303 at [114] to [143] in a case concerning pharmaceutical benefits in relation to Viagra. At [138] her Honour observed:
"In my view, para 2.5 of the s 13 statement does no more than say, in lay terms, that the expertise of Committee members was used to inform their decisions about matters within their area of expertise. It is almost inconceivable that individual Committee members would have come forward and given formal evidence about matters relevant to the submission." (Emphasis added)
107 These remarks, in my view, accord with what would have happened in the present case.
108 As to procedural fairness generally her Honour at [139] referred to the remarks of Wilcox J in Minister for Health v Thomson (1985) 8 FCR 213 at 224 to the effect that to be required to show a "draft report" to the respondents, and invite comments would be an "extreme step" not required by notions of fairness in the circumstances before his Honour. This supports a conclusion that the procedure provided for in the present case went a considerable way beyond previously accepted administrative law requirements of fairness because to a great extent, the reasoning processes were disclosed.
109 In the present case the Committee was not obliged by statute to provide a draft of its Report to the practitioner but nevertheless it did so. The position has since been varied by the insertion of s 106KD in the Act as from 1999. Now the furnishing of a draft report is required.
110 In this case it is not suggested that there is any specific evidence, matter or information which the Committee failed to disclose. Rather the focus of the complaint is on the absence of reasoning from the Committee as to why it rejected particular evidence. That being so, it is necessary to consider the context in which this Committee came to consider the additional affidavit material. On the face of the reasons for the decision, the Committee referred to the supplementary affidavits and took them into account. In fact in two specific cases the Final Report differed in favour of Dr Tisdall. The point of time at which the affidavits were filed is also important. It was after and in response to a Draft Report which had disclosed in detail the thought processes and reasoning of the Committee up to that point of time. There were then oral and written submissions in relation to that and other material. It was clear at the time this occurred that the evidence of Dr Tisdall had not been accepted on material matters and these were specified with the result that the additional material was proffered to meet that rejection. The issues were clearly disclosed.
111 I am satisfied that the Committee in the present case relied on its general expertise and experience to evaluate the material placed before it and that in so doing, there is no indication of any specific material findings, information, or knowledge having been used by the Committee to support its conclusions which would disadvantage the applicant. Given the history of the hearings and the detailed particular information furnished to the applicant I am not satisfied that there was any procedural unfairness resulting form the way in which the Tribunal used its expertise and experience to reach its conclusion. The use of general experience and expertise was fundamental to the members performing their assigned function and was the basis for their appointment in determining what was the appropriate conduct and whether there was inappropriate conduct in the circumstances. There was no breach of any duty of disclosure in relation to the way in which the evidence was considered.
DELAY
112 The chronology of the inquiry progress is set out earlier in these reasons. The Committee hearings began on 5 May 1999. The applicant submitted that the delay in hearing this matter was so great that the hearing process was unfair and an abuse of process. Dr Tisdall says he was disadvantaged in that his recollection as to what occurred in 1996 was diminished as a consequence of the delay. A similar argument was raised in Grey and rejected. The relevant principles are there set out. In my view there is no substance in the submission in the circumstances of the present case. There was a discussion of the principle by the High Court in Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 33, 53 ff and 57 ff. The touchstone in deciding whether the degree of delay is sufficient to justify a stay or dismissal of proceedings, is fairness and this includes, among other considerations, taking account of the extent of the delay and any prejudice occasioned. In the present case, the preliminary steps which were required to be undertaken before the hearing involved a detailed examination of medical records over a period of twelve months. The period between 1996 to the commencement of the hearing was not unreasonable. It was a period of approximately three years. There is no suggestion of any deliberate delay. Moreover, on a fair reading of the Report the Committee, in forming its conclusion, took into account the lapse of time between 1996 and the dates of hearing when evaluating the evidence of Dr Tisdall and made what it considered appropriate allowance. I am not persuaded that Dr Tisdall was materially disadvantaged in any way in presenting his case in this matter as a consequence of the lapse of time between the end of the period of investigation and the determination.
OTHER UNFAIRNESS
113 There are a number of matters on the basis of which it is said that the procedure adopted by the Committee was unfair. It is submitted that the Committee acted unfairly in not accepting the evidence in the later affidavits and yet not summoning the deponents for questioning in order to register any concerns which they must have entertained about that evidence. The short answer to this contention is that the applicant had an opportunity to call those deponents at the later hearing if he so wished. In an exchange with the Committee, the applicant asked if the Committee required the doctors to be called. After some discussion the answer was in the negative. He did not call them. However, it was open to him to call those witnesses and adduce further evidence orally. In my view, it was not incumbent on the Committee to require any of the deponents to be called in order for the Committee to interrogate them and put to them any perceived shortcomings or limitations in their evidence. This was the choice of the applicant and he elected not to bring them forward. I do not think the practitioner can now reasonably complain about the fact that they did not appear before the Tribunal.
114 As mentioned earlier, the fact that the Committee did not reach a conclusion based on the affidavits does not mean that they were not considered. They clearly were.
115 In the context in which the affidavits were proffered it was not necessary nor appropriate to require or furnish any particulars as to the thought processes of each of the Committee members.
116 The statutory function of the Committee is to provide a written report setting out its findings. There are no other specific detailed requirements as to the form or content of the report. In particular, there is no requirement for detailed discussion of the evidence in every respect leading up to the making of findings on each matter which may have been canvassed in the hearing. Nor is there any requirement to set out detailed reasons and refer to all the evidence which they considered. This is not uncommon in legislation which assigns tasks to administrative tribunals. In my opinion there was sufficient discussion, reasoning and reference to satisfy the requirements of the Act.
117 It is claimed that the Committee examined Dr Tisdall in a "hostile" and "unfair" manner. An examination of the transcript referred to by Counsel for the applicant does not express any more than a robust exchange at times by both parties. Naturally, inquiries of this nature can give rise to warm debate where questions of professional standards and reputations are concerned. In my view, the questioning and procedure did not travel beyond the limits of a fair and reasonable hearing.
118 As a particular instance of "unfairness" it is claimed that it was unfair of the Committee to require Dr Tisdall to recollect the details of each and every service under consideration. The fact is that, as the Committee stated in its Report, it took into account the time that had elapsed since the date of each identified service was said to have been provided. It noted that Dr Tisdall had used his notes to reconstruct the services and that he had regard to his usual practice in aid of his recall. The Committee did not say that he should have recalled all or the majority of the circumstances in each case. The focus of concern for the Committee was that he could not say whether any service would have taken more or less than five minutes. In my view, there is no substance in the submission that the Committee acted unfairly in applying an unreasonable requirement as to the applicant's level of recollection concerning services said to have been provided.
119 In relation to the inadequacy of his notes the Committee points out that it did not arrive at its findings solely on the basis of his records and in most cases it relied on his own explanations of diagnoses, treatment and management of his patients. It acknowledged there was no legal obligation for the applicant to keep adequate clinical notes during the referral period but noted that medical practitioners usually keep adequate and contemporaneous records to assist in management of the patients by recording the necessary information about history, medications, allergies and illnesses. In my view, there is nothing unfair or unreasonable in the approach taken by the Committee in respect of record keeping.
120 The Committee did not, in my opinion, predetermine a time criterion. It reached a conclusion by reference to the descriptor of item 23 and its experience and expertise that such service could not be provided within less than five minutes. I do not consider that the Committee conducted the hearing unfairly by hostile, oppressive or unfair questioning. The applicant was given every reasonable opportunity to present his case and ample opportunity to respond to the Draft Report which sets out in detail the reasoning of the Committee.
BIAS
121 Because Dr Demediuk was on the Committee and because he did not disqualify himself it is said that the Committee was biased.
122 The question of bias was recently considered by the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [31] Gleeson CJ, Gaudron and Gummow JJ said:
"Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view."
123 There is no indication of Dr Tisdall being overborne or intimidated.
124 It is said that Dr Demediuk was biased in so far as he was closely associated with and held a senior position with the Royal Australian College of Physicians which had an entry standard for general practitioner accreditation that required average times for consultation be not less than ten minutes. The requirement however, contained a proviso that actual times for individual appointments could vary according to clinical need. In other words it was a general guideline. In substance, it is said that Dr Demediuk could be perceived by a reasonable objective observer to be predisposed to approach the investigation of the applicant with a view within item 23 that a ten minute period for consultation was appropriate.
125 The applicant has not pointed to any material in the Committee's Report where the Committee applied any alternative standard of ten minutes for a consultation. There is no evidence that Dr Demediuk had any view that ten minutes was a minimum period in all circumstances.
126 The actions of the Committee clearly point to the absence of bias in that detailed particulars were given to the applicant; he was given the opportunity to make detailed written submissions with assistance and to have advisers present. He was afforded an extra day for oral hearing after the Draft Report and the further affidavits. The Draft Report was amended in two significant instances favourably to him. He was given the opportunity to call deponents of the affidavits as mentioned above but did not do so. There is no foundation for a conclusion that he was lulled into some false sense of security by the fact that the Committee did not require the deponents of the affidavits to appear before it. The Committee left it to Dr Tisdall to call them if he wished.
127 The material before the Court does not provide any basis to support a submission that the Committee was biased in any way either actually or ostensibly in relation to the investigation of the conduct of the applicant. The Draft Report demonstrates frankness as to its reasoning process and highlights the areas where the applicant could make further submissions in an attempt to persuade the Committee to amend its determination.
CONSTITUTIONAL QUESTION
128 This was not argued before me because it was agreed that I am bound by the Full Court decision in Tankey v Adams [2000] FCA 1089 which held that a Committee established under the Health Insurance Act was not exercising judicial, as opposed to administrative power. In my view, this conclusion is correct and it is binding on me.
129 Having regard to the well-settled principles as to what constitutes an exercise of the judicial power of the Commonwealth, set out in detail in Tankey, there is no exercise of judicial power by the Committee in this matter.
130 The Committee Report does not amount to a decision which will affect rights or obligations. It makes a finding as to the character of certain specified conduct. Further action on the Report will depend on the decision of the Determining Officer, which is subject to review and thereafter to appeal to the Court. The Committee has no power to enforce its determinations. It simply makes a finding on conduct measured against the practice of the general body of practitioners. It may give rise to circumstances which might, if other action were taken, affect the practitioner but this is not sufficient to constitute an exercise of the judicial power of the Commonwealth.
CONCLUSION
131 The applicant has failed to make good his application for review on any of the grounds raised. Accordingly, the application should be dismissed. I order that the applicant pay the respondents' costs on the usual basis that costs follow the outcome of the proceedings. There are no circumstances which call for a contrary conclusion.
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. |
Associate:
Dated: 15 February 2002
Counsel for the Applicant: |
Bruce Monotti Peter Lithgow |
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Solicitor for the Applicant: |
Grundy Maitland & Co |
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Counsel for the Respondents: |
Felicity Hampel QC M D Murphy |
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Solicitor for the Respondents: |
Minter Ellison |
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Date of Hearing: |
3, 4, 5 and 6 December 2001 |
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Date of Judgment: |
15 February 2002 |
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