THE FACTUAL BACKGROUND
Dr Yung is a medical practitioner certified for general practice by the Royal Australian College of General Practitioners. In the period between 1 January 1994 and 31 December 1994 (the "referral period") he practised three days a week from premises at Kirrawee (a medical clinic); on average he performed 106 services per day at that location. In the same year he also carried on practice at a number of other locations on other days. This level of service (in a year from the Kirrawee location he rendered 17,331 services) came to the attention of the Health Insurance Commission, a body established under the Health Insurance Commission Act 1973. His patients were entitled to Medicare benefits by virtue of the provisions of Part II of the Health Insurance Act 1973 ("the Act").
The extent of his servicing in the previous year came to the attention of the Commission by the application of computer technology which enabled the Commission to identify practitioners whose practice profiles differed greatly from other practitioners practising in the same area. He was counselled but the pattern of his servicing in the year to December 1994 reflected no change.
Ultimately the Commission on 8 May 1995 issued a referral to the Director of Professional Services Review appointed under s 83 of the Act to consider his conduct and whether he had engaged in inappropriate practice in connection with the rendering of services in a 12 month period. The referral was restricted to his services at Kirrawee in the referral period. The instrument of referral noted the concern of the Commissioner that the doctor would not be able to provide an appropriate level of clinical input when consistently rendering the number of services or when working excessively long hours at Kirrawee. The document is a long document and it is unnecessary to quote extensively from it. It alleged, inter alia:
"In the referral period, 1 January 1994 to 31 December 1994, Dr Yung provided 19,622 services under Medicare of which 17,331 (88.3%) were provided at his Kirrawee practice, mostly on Mondays, Tuesday and Thursdays. ... This corresponds to an average of over 100 services on each of these days. On Wednesdays, Fridays, Saturdays and Sundays services were mostly provided at locations other than Kirrawee. In contrast to his Kirrawee location, the number of services provided averaged between 8 and 13 per day".
The Commission noted, in forming its view about the inappropriateness of his practice, that:
"Dr Yung provides more services than 99% of all general practitioners in Australia.
It also noted the findings of the Interpractice Comparison Survey conducted by the Royal Australian College of General Practitioners, noting that the:
"servicing rate equates to approximately 13.7 minutes per consultation."
It also noted that The Entry Standards for General Practice Accreditation developed and adopted by the Royal Australian College of General Practitioners states:
"Consultation times are long enough to allow quality care. This means that average times are not less than 10 minutes.
Using this guideline, to provide 100 services a day, Dr Yung should have worked continuously for at least 16.7 hours."
It seems that Dr Yung, on his own evidence (if accepted), did work some 16 hours a day on the three days a week at Kirrawee. The referral in its formal part concluded, after referring to a written opinion by a consultant:
"Given these reasons, the Health Insurance Commission is concerned that the appropriate level of clinical input could not be maintained for such long hours on a regular and continuing basis and believes that this conduct is unacceptable to the general body of General Practitioners."
As has already been noted, the services at Kirrawee were performed at a medical clinic. The referral was duly notified to the doctor. The Director determined to set up a committee to consider whether the doctor had engaged in inappropriate practice in accordance with s 89 of the Act.
A duly constituted Committee met, as required, in private. It held a hearing of which notice was given to the doctor. Although not, under the Act, entitled to legal representation, Dr Yung was accompanied by a solicitor as permitted under s 103(1). The Committee did not restrict itself to consider the matter directly raised in the referral. In addition, it raised other issues including both what it saw as a lack on his part to make home visits and a lack of rendering after hours services.
The hearing took place on 14 July 1995 and for a short time on 27 July 1995. The Committee examined Dr Yung and a Dr Gooley, the senior partner in, and ultimate owner of, the practice in Kirrawee which, by the time of the hearing, Dr Yung had left. Dr Yung expressed the view that he was satisfied with the quality of care he had provided. Dr Gooley expressed the view that Dr Yung was:
"an exceptionally competent caring medical practitioner whose patients would come and insist on seeing him and no one else."
On 30 August 1995 the Committee issued a report. The following extract from that report appears in the judgment appealed against:
"Dr Yung entered private medical practice at Kirrawee in 1984 following 2 years hospital experience after graduation from the University of Sydney in 1982. In the Committee's view, the practice environment at Kirrawee was one of poor quality, the emphasis in the practice being one where financial motivation took a higher profile than the concept of professionalism. The Committee found little evidence of in-house quality assurance. He practised episodic rather than continuing care. He has little demonstrated evidence of preventive care. His medical records are of very poor quality. He had only 93 level A consultations despite an extraordinary high total of 15502 consultations at Kirrawee during the referral period. His level of competence is questioned. He provides a miniscule level of home visiting compared with his peers and therefore does not show a commitment to the immobile. Other concerns have been expressed in the accompanying documentation.
Dr Yung entered this practice without previous general practice experience. He readily accepted the Kirrawee practice arrangements and was content to continue in a less than adequate practice for more than 10 years. His servicing rate is beyond the 99th percentile of practitioner services in the Australian environment. He was counselled by a Medical Adviser from the Health Insurance Commission and made no effort to change his patient numbers per day. His lack of response to counselling, knowing what the consequences of such lack of response might be, demonstrates either arrogance or stupidity and is incomprehensible to the Committee.
The view of the Committee is that Dr Yung is grossly at variance with both adjacent area practitioners (as shown by the HIC statistics), the general body of practitioners, with world opinion, with what the Committee itself considers to be reasonable and what it believes to be the opinion of Dr Yung's peers in good standing.
The Committee was asked to consider whether or not Dr Yung has practised inappropriately. The Committee finds that Dr Yung has practised inappropriately in that his professional conduct as presented in the referral and as elicited during the course of the hearing is such that it would not be acceptable to the general body of vocationally registered general practitioners."
The Committee made a number of findings. It expressed itself as being unable to accept that a practitioner could give proper professional attention to patients when rendering such a high number of services and when regularly working such excessively long hours. It noted a failure to provide an adequate summary in 92 out of 111 records examined and considered from a sample of 91 records taken on one day (29 November 1994) that 75 consultations warranted being billed as level B consultations (MBS item 23) but suggested that the remaining 16 consultations should have been billed at a lower rate, being a less complicated consultation, as level A (MBS item 3). It referred additionally to an assertion that the doctor had prescribed antibiotics on that day in 17 cases and, in 10 of them, antibiotics were not indicated and expressed the view that he should not be classified as a vocationally registered general practitioner. Not only were many of the matters it referred to not dealt with in the referral but also the Committee made no attempt to formulate in writing a case on these matters for Dr Yung to answer. No finding was made of inappropriate practice in relation to any identified patient or patients; nor was there ever a suggestion that a patient had ever complained of his treatment. No attempt was made, as the law then permitted, for statistical sampling of these services to be made on which findings could be based.
Because the Committee's report expressed the view that, in its opinion, his conduct in connection with the rendering of services was unacceptable to the general body of the members of the area of general practice in which he was practising, the matter was considered by a determining officer appointed under s 106Q of the Act who, in accordance with s 106S, made a draft determination and gave a copy of that draft to Dr Yung inviting him to make written submissions. A final determination then issued on 18 October 1995.
The determining officer, Dr Adams, the respondent to the present proceedings, in the final determination dated 18 October 1995 directed the doctor to be counselled, that he pay to the Commonwealth an amount of $42,130.60 said to be the amount equivalent to Medicare benefits paid for the inappropriate services and that, in accordance with s 160U(g)(i) of the Act, he be disqualified in respect of all services to which an item relates in Group A1 of Part 2 of the General Medical Services Table for a period of 9 months and, in accordance with paragraph 160U(h) of the Act, he be fully disqualified for a period of 6 months. Dr Adams commented in effect that, in accordance with legal advice he had been given, based upon the Committee's report, there being no provision made in the Act, he was unable to consider other material outside the referral period. Arguments put by Dr Yung challenging findings and the validity of the Committee's conclusions were not taken into account.
In giving reasons for his decision, Dr Adams said, inter alia:
"2. I noted that Dr Yung had been counselled regarding his rendering of services by the Health Insurance Commission prior to the referral of his conduct and that 'his lack of response to counselling, knowing what the consequences of such lack of response might be' (ie. the referral of his conduct) was incomprehensible to the Committee.
4. I noted that the Committee had cause to question Dr Yung's truthfulness during its hearings into his conduct and that it had concerns about the standard of Dr Yung's clinical records and his prescribing habits."
Dr Yung's solicitors then requested a review of this final determination in accordance with s 114(1) of the Act.
Such a review was held by a Professional Services Review Tribunal constituted in accordance with s 108 of the Act. At this stage the doctor was entitled to be represented and he, or his representative, given an opportunity to address the Tribunal. The members of the Tribunal (the review was the first conducted under a new legislative scheme) were the Honourable Mrs Lusink, a former Justice of the Family Court of Australia, Professor Priscilla Kinkaid-Smith and Dr Peter Joseph. The latter two were both medical practitioners. The review was limited to the material forwarded by the Minister and addresses made by Counsel. The Tribunal reached what the President referred to as its own view, the conclusion that the decision of the Committee was correct, although she went on to say that she did not necessarily agree with all aspects of the Committee's proceedings or its report on its findings. The Tribunal set aside the determination save for the direction as to total disqualification.
Professor Kinkaid-Smith, in additional comments, accepted the Committee's finding of inappropriate practice based, as she said, largely on the fact that Dr Yung in the relevant period was above the 99th percentile of that recorded by other general practitioners. She referred also to a large number of x-rays carried out which she suggested may have arisen because of a profit incentive or because the time he took was too short to determine the need for an x-ray. She also expressed the view that the Committee had dealt with a large number of issues irrelevant to its key issue. She signalled various problem areas including inappropriate services, lack of continuity of care, lack of home visits, the failure to take into account the type of patients seen in medical clinics, after hours care, the use of a non random sample of records, the use of draft standards for General Practice Accreditation having no status, over prescribing of antibiotics, quality assurance and a view expressed implicitly, at least, by the Committee, that 16 hours of work a day for Dr Yung was of itself inappropriate practice. These views were endorsed by Dr Joseph who made, in addition, some general comments of his own as to the legislative scheme.
From this decision of the Tribunal, the doctor appealed to this Court under s 124A of the Act. Such an appeal is on a question of law only.
THE JUDGMENT APPEALED FROM
The appeal was heard by Davies J and was allowed by his Honour. He ordered the decision of the Tribunal to be set aside and the proceedings to be remitted to another tribunal, differently constituted. His Honour's reasons for so doing may be briefly summarised:
1. There were three major flaws in the Committee's proceedings and report. The first was a failure to accord to the doctor procedural fairness, both in failing to give him reasonable notice of the matters it was to consider and also a reasonable opportunity to respond to findings adverse to him which it proposed to make.
2. The second flaw was that the Committee made global findings, either of or relevant to inappropriate practice, without relating these findings in any meaningful way to the referred service. In particular, it made no attempt to deal with statistical samples.
3. The Committee did not state clearly the findings of inappropriate practice which it made.
4. The determining officer also misapprehended his powers. In deciding that he was limited to events occurring during the referral period, he erred. He was thus entitled to take into account matters such as whether Dr Yung had subsequently changed his ways and reformed the nature of his practice.
5. Because the determining officer gave effect to the findings of the Committee and those findings were procedurally flawed that affected the determination.
6. The Honourable Mrs Lusink and the other members of the Tribunal, both of whom agreed with her, had failed to give adequate reasons for concluding that the decision of the Committee that the doctor had practised inappropriately was correct. Although reasons were given by Professor Kinkaid-Smith and Dr Joseph, the Professor had come to adverse conclusions about radiology and thus denied the doctor natural justice for no allegation had ever been formulated against him with respect to radiology and so he did not have the opportunity to answer. There was, his Honour said, an obligation upon the Tribunal to give a written decision setting out its findings with reasons. The failure to do so alone made it necessary, in his Honour's view, that the matter be remitted to a tribunal differently constituted. It raised an inference that errors of law had occurred.
7. The Tribunal also erred in failing to make a clear identification of inappropriate practice or practices related to an identified service or services.
8. Finally, the Tribunal's reasons had to be set aside because of the flaws that had occurred at earlier stages, particularly procedural fairness in the Committee.
His Honour noted that counsel for the doctor had rejected a suggestion that the Committee's decision and the determination should have been challenged. Thus those decisions still stood. Any challenge would have had to be brought under the Administrative Decisions (Judicial Review) Act 1977 or s 39B of the Judiciary Act 1903 (Cth). Accordingly, his Honour dealt with the matter purely as an appeal under s 124A and set aside the Tribunal's decision.
From this decision the determining officer appealed to this Court. A notice of contention was lodged also by the doctor.
THE QUESTIONS OF LAW IN THE APPEAL
On the appeal the Court was greatly assisted by lengthy submissions from counsel. In the course of the submissions by counsel for the determining officer, the Court requested that the issues of law contained within those submissions be formulated more precisely. This did not happen despite repeated requests that it be done. Doing the best we can from the way the matter was argued, the questions may be stated as follows:
1. That the Tribunal had afforded the doctor natural justice and was not restricted to considering the subject matter of the referral but could consider any matter affecting conduct in the referral period without the need to give particulars or prior notice to the doctor.
2. That the Tribunal was not bound to investigate specific services; its task was to consider conduct. Thus the Committee could look at the matter in a generalised way without considering either the whole of the services in the referral period or a statistically acceptable sample.
3. That in considering the question of inappropriate practice, it was necessary to take into account the fact that the doctor was certified for general practice by the Royal Australian College of General Practitioners and to apply standards which that College had published. The learned judge below had criticised the Committee for so doing.
4. That the Tribunal's powers (and by implication the legal issues arising before this Court on appeal) were limited to a consideration of matters of penalty and it was not open to the Tribunal to consider what happened before the Committee, if errors of law committed by the Committee were found. The Tribunal, in other words, was bound by the decision of the Committee regardless of any error that may have occurred in its procedure or reasoning.