Hamor v Commonwealth of Australia

Background 7 At all relevant times, by s 82(1)(c) of the Health Insurance Act 1973 (Cth) (Act), a practitioner engaged in inappropriate practice if the practitioner's conduct in connection with rendering or initiating relevant services as a consultant physician in a particular specialty was such that a committee could reasonably conclude that the conduct would be unacceptable to the general body of consultant physicians in that specialty. By s 81, service relevantly means a service that has been rendered if, at the time it was rendered, medicare benefit was payable in respect of the service. By s 3, medicare benefit means a medicare benefit under Part II of the Act. By s 10(1) of the Act, where medical expenses were incurred in respect of a professional service rendered in Australia to an eligible person, medicare benefit calculated in accordance with s 10(2) was payable, subject to and in accordance with the Act, in respect of that professional service. The benefit in respect of a service was calculated as a percentage of the Schedule Fee. The Schedule Fee, in relation to a service, means the fee specified in the table in respect of the service. The table means, relevantly, the general medical services table prescribed by s 4 of the Act. As already noted, at the relevant time, this table was set out in Sch 1 to the Regulation. Regulation 5 of the Regulation stated that, for s 4(1) of the Act, the Regulation prescribed a table of medical services set out in Sch 1. 8 During the review period, item 12250 provided: Overnight investigation for sleep apnoea for a period of at least 8 hours in duration for a patient aged 18 years or more, if all of the following requirements are met: (a) the patient has, before the overnight investigation, been referred to a qualified sleep medicine practitioner by a medical practitioner whose clinical opinion is that there is a high probability that the patient has obstructive sleep apnoea; and (b) the investigation takes place after the qualified sleep medicine practitioner has: (i) confirmed the necessity for the investigation; and (ii) communicated this confirmation to the referring medical practitioner; and (c) during a period of sleep, the investigation involves recording a minimum of 7 physiological parameters which must include: (i) continuous electro-encephalogram (EEG); and (ii) continuous electro-cardiogram (ECG; and (iii) airflow; and (iv) thoraco-abdominal movement; and (v) oxygen saturation; and (vi) 2 or more of the following: (A) electro-oculogram (EOG); (B) chin electro-myogram (EMG); (C) body position; and (d) in the report on the investigation, the qualified sleep medicine practitioner uses the data specified in paragraph (c) to: (i) analyse sleep stage, arousals and respiratory events; and (ii) assess clinically significant alteration in heart rate; (e) the qualified sleep medicine practitioner: (i) before the investigation takes place, establishes quality assurance procedures for data acquisition; and (ii) personally analyses the data and writes the report on the results of the investigation. (f) the investigation is not provided to the patient on the same occasion as a service mentioned in any of the items 11000 to 11005, 11503, 11700 to 11709, 11713 and 12203 is provided to the patient Payable only once in a 12 month period 9 Clause 1.2.8 of Sch 1 applied relevantly to item 12250. By cl 1.2.8(2), the item applied whether the medical service was given by: (a) a medical practitioner; or (b) a person, other than a medical practitioner, who: (i) is employed by a medical practitioner; or (ii) in accordance with accepted medical practice acts under the supervision of a medical practitioner. 10 The review raised an issue about whether elements of the item 12250 services investigated by the Committee were given by a person other than Dr Hamor, not employed by him (being persons referred to as technicians or scorers). Accordingly, an issue for investigation by the Committee was whether, to the extent that the services were given by the technicians or scorers, they were given by a person who acted under Dr Hamor's supervision in accordance with accepted medical practice. The Committee noted that the 2014 Medical Benefits Schedule Book, published annually by the Department of Health and Ageing, explained the effect of cl. 1.2.8 in relation to item 12250 as follows: So that a service rendered by an employee or under the supervision of a medical practitioner may attract a Medicare rebate, the service must be billed in the name of the practitioner who must accept full responsibility for the service. The Department of Human Services must be satisfied with the employment and supervision arrangements. While the supervising medical practitioner need not be present for the entire service, they must have a direct involvement in at least part of the service. Although the supervision requirements will vary according to the service in question, they will, as a general rule, be satisfied where the medical practitioner has: a) established consistent quality assurance procedures for the data acquisition; and b) personally analyses the data and written report. 11 The disputed preliminary findings are recorded in a draft report, purportedly prepared pursuant to s 106KD of the Act, and provided to Dr Hamor by letter dated 28 August 2018. The disputed final findings are recorded by the Committee in its "Final Report of Professional Services Review Committee No 1015 regarding Dr George Hamor" (final report) dated 13 March 2019 purportedly made pursuant to s 106L of the Act. 12 The allegation of apprehended bias is a serious one and should be addressed first because, if the Committee's decision making is found to be affected by apprehended bias, there must be a fresh review and investigation of Dr Hamor's relevant conduct regardless of whether the Committee's decision is correct: cf. Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [117].

Dr Hamor 13 Dr Hamor commenced his consultant practice in 1978. He worked for nearly 40 years at Sutherland Hospital, and in 1995 established a sleep unit at Sutherland Hospital. During the review period, Dr Hamor conducted a private practice at Miranda and also reported home sleep studies through a business known as Healthy Sleep Solutions (HSS). 14 Polysomnography (the study of sleep) involves a physiological recording of a patient whilst he or she sleeps. It may be: (1) an attended sleep study, which is usually undertaken in a sleep laboratory; or (2) an unattended sleep study (also called a home sleep study), which is usually undertaken in the patient's home. 15 Subject to certain criteria being met, services provided by a medical practitioner in relation to a sleep study may be billed to Medicare. The parties agreed that, in general, item 12250 concerns an unattended sleep study, and MBS items 12203 and 12207 concern attended sleep studies. 16 As described by Dr Hamor, HSS facilitated the provision of home sleep studies by Dr Hamor in the review period. Technicians engaged by HSS booked patients, took a history from the patient and provided patients with the equipment to take home to do the sleep study. HSS also provided scorers to score the data, communicated with the consultant physician, and sold sleep-related products including continuous positive airway pressure (CPAP) machines.

Committee, its establishment and investigation 17 The stated object of Part VAA of the Act, in s 79A, is, relevantly, to protect the integrity of the Commonwealth medicare benefits program and, in doing so: (a) protect patients and the community in general from the risks associated with inappropriate practice; and (b) protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice. 18 To that end, Part VAA establishes the Professional Services Review Scheme, for reviewing and investigating the provision of services by a person to determine whether the person has engaged in inappropriate practice: s 80(2). 19 By s 83(1), a medical practitioner may be appointed by the relevant Minister to be the Director of Professional Services Review. Section 106ZE of the Act provides for acting appointments. 20 Section 93(1) empowers the Director to set up a committee in accordance with Div 4 of Part VAA and make a referral to the committee to investigate whether the person under review engaged in inappropriate practice in providing the services specified in the referral. 21 On 17 January 2017, the Acting Director of Professional Services Review set up Committee No. 1015, comprising Dr Robyn Napier as Chairperson, and Professors Matthew Naughton and Ronald Grunstein, in accordance with s 93(1) of the Act. Dr Robyn Napier was a general practitioner (GP). As required by s 95(1)(a), Dr Napier was a Deputy Director of Professional Services Review appointed under s 85 of the Act. 22 By s 95(3), as Dr Hamor was a consultant physician in relation to a particular speciality at the relevant times, the Committee was required to include two members who were also consultant physicians in relation to that speciality. Professors Matthew Naughton and Ronald Grunstein were both consultant physicians in Dr Hamor's speciality of sleep and respiratory medicine. More detail about Professors Naughton and Grunstein is set out below. 23 The Acting Director referred to the Committee the investigation of whether Dr Hamor engaged in inappropriate practice in providing services under item 12250 during the review period. Thus, the only services provided by Dr Hamor that were the subject of the investigation were those provided under item 12250. 24 By s 96(1), Dr Hamor was permitted to challenge the appointment of a Committee member on the grounds that the member: (a) is biased or is likely to be biased; or (b) is likely to be thought, on reasonable grounds, to be biased. 25 By s 96(2)(c), the challenge was required to be given to the Director within seven days after the person under review received a copy of the referral under s 93(7). 26 Dr Hamor did not make a challenge under s 96. 27 By s 101(2), the Committee was required to hold a hearing if it appeared to the Committee that the person under review may have engaged in inappropriate practice in providing the referred services. 28 On 4 and 5 May 2017, the Committee held a private hearing attended by Dr Hamor and his solicitor. Section 103(1) set out Dr Hamor's rights at a Committee hearing (subject to any reasonable limitations or restrictions that the Committee may have imposed), including rights to attend the hearing with a lawyer, to question a person giving evidence at the hearing and to call witnesses to give evidence (other than evidence as to his character). By s 103(1)(g), Dr Hamor was entitled, after the conclusion of the taking of evidence, to make a final address to the Committee on questions of law, the conduct of the hearing and the merits of the matters to which the hearing related. 29 By s 106(2) of the Act, the Committee was not bound by the rules of evidence but was permitted to inform itself on any matter in any way it thought appropriate. 30 On 2 June 2017, Dr Hamor's solicitor made a post-hearing submission to the Committee. Relevantly, the submission stated: (1) Dr Hamor did not exercise his right under s 96 of the Act because he was of the view that each of the Committee members would bring an impartial and unbiased view to the consideration of his matter. (2) "Unfortunately, during the early period of the Hearing and continuing throughout, it became clear that the views being expressed by [the Committee] in relation to home sleep studies in general and also in respect of the commercial organisations involved in the provision of those were such that a reasonable person properly informed of all the facts might form the view that [the Committee] had not brought an impartial mind to its deliberations." 31 In further support of this complaint, the post-hearing submission raised the following two matters: (1) "Preliminary findings" by the Committee (which necessarily must have been expressed prior to the draft report which had not yet been published) that virtually all of the reviewed services were "complex" and would have warranted a specialist consultation and a lab-based sleep study. (2) Adverse comments about Dr Hamor's use of the acronym OSA for obstructive sleep apnoea by reference to a Google search of OSA that produced 75 responses. 32 Later in the post-hearing submission, Dr Hamor contended: …[the Committee] made numerous inappropriate comments about the ethnicity of the scorers, the quality assurance measures in place in relation to those scorers, about the qualifications and background of the technicians involved, about home sleep studies generally and about commercial organisations involved in the facilitation of home sleep studies. With respect, such comments are inappropriate and simply not relevant to the determination of the question before [the Committee]. 33 By s 106KD of the Act, the Committee was required to prepare a draft report of preliminary findings, setting out (relevantly) preliminary findings and the reasons for those preliminary findings. By s 81, findings, in relation to a draft report or final report of a Committee, was defined to mean the Committee's findings as to whether the person under review engaged in inappropriate practice in the provision of some or all of the services specified in the referral made to the Committee. 34 Section 106H(4) provided: (4) Before the Committee makes a finding of inappropriate practice, it must: (a) notify the person under review of its intention to do so; and (b) provide the person under review with the reasons on which the Committee intends to base its finding; and (c) give the person under review an opportunity to respond. 35 By letter dated 28 August 2018, the Committee provided Dr Hamor with the draft report. Among other things, the draft report rejected the complaint of apprehended bias that had been made in Dr Hamor's post-hearing submission. 36 On 19 November 2018, Dr Hamor provided submissions on the draft report to the Committee. He continued to rely on the post-hearing submission and made further submissions concerning apprehended bias, requesting that each of the Committee members recuse themselves. 37 By s 106L, the Committee was required to prepare a final report, relevantly, setting out the Committee members' findings. By the final report, the Committee repeated its earlier response to the claim of apprehended bias and made further comments rejecting it.

Alleged grounds for reasonable apprehension of bias 38 Dr Hamor contended that the conduct of each of the Committee members individually, and the Committee as a whole, during the hearing, taken with comments made by the Committee in the draft report and the final report, and other public comments made by the Committee members, were such that a fair-minded lay person might reasonably apprehend that the Committee might not have brought an impartial mind to the resolution of the question whether Dr Hamor engaged in inappropriate practice in the review period. 39 In his application, Dr Hamor specified the following matters in support of this contention: (1) The following conduct of the Committee during the hearing: (a) comments made by and questions asked by the Committee members about the commercial practices of HSS and its employees, and other commercial organisations which provide unattended sleep studies and also sell CPAP machines, and the medical practitioners and staff members who provide services for them, including in relation to the selling of CPAP machines; (b) comments made by and questions asked by the Committee members about the location and qualifications of the technicians engaged by HSS; (c) the Committee members' expression of views about the requirements of item 12250 and expectations concerning the provision of item 12250 services (in a way which was adverse to Dr Hamor), which did not reflect the requirements of the item number, including by appearing to consider that it should generally not be used for patients in or near urban areas, or for complex patients and by indicating that Dr Hamor was required to ensure that an adequate history was taken; (d) the Committee members cast inappropriate aspersions on the qualifications and/or accreditation of the sleep scorers engaged by HSS based upon their country of origin; (e) the use of the search engine "Google" to obtain evidence which was adverse to Dr Hamor, without tendering it; (f) the expression of a view (either implicitly or explicitly) that certain services would have warranted a lab-based study; (g) adopting a challenging style of questioning and repeatedly expressing "concerns" where these did not all relate to Dr Hamor's conduct in connection with rendering or initiating services, particularly on the second day of the hearing; and (h) in the context of inquisitorial proceedings, adopting a role of cross-examining Dr Hamor and presenting him with propositions about the requirements of MBS 12250, and what was unacceptable to the general body of physicians in his specialty, which the Committee did not appear to be open to reconsidering. (2) The following aspects of the draft report and the final report: (a) the inference drawn in the final report (at [129]), without the necessary evidence, that the franchise owners and employees of HSS would likely promote the sale of their own products rather than give customers a genuine choice and finding that Dr Hamor failed to minimise the conflict of interest the Committee attributed to them, where this was not directly relevant to Dr Hamor's conduct in rendering services; (b) finding in both reports (incorrectly and without a proper basis for doing so) that Dr Hamor was effectively an agent for HSS and that Dr Hamor and the HSS technicians did not give truly objective and independent advice; (c) making multiple references to the scorers' location "in India", without any explanation of why their location was relevant to Dr Hamor's conduct; (d) failing to give any weight to the evidence of Drs Cunnington, Deller and Allcroft (three physicians), all of whom practised in the provision of home sleep studies; and (e) reiterating the view that, in some cases, an attended sleep study (also called a laboratory-based sleep study) would have been more appropriate, when item 12250 did not require such a comparison to be made before the provision of the service. (3) The nature of the practices of each of Professors Grunstein and Naughton, which were mainly or wholly in laboratory-based sleep studies. Neither had regular practice in home sleep studies. Neither had ever provided home sleep studies under a contractual arrangement with a commercial provider of sleep studies. 40 In his submissions, Dr Hamor also relied on views expressed by Professor Grunstein and published online.

Relevant law 41 The Committee was required to afford Dr Hamor procedural fairness, including by avoiding a reasonable apprehension of bias. The rule against bias applies to any decision which is subject to the principles of procedural fairness and is concerned with public confidence in the administration of justice: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140 (CNY17) at [55] (Nettle and Gordon JJ). The rule is designed to ensure that the decision-making process is, and appears to a fair-minded lay observer (or fair minded lay person where an administrative proceeding is conducted in private) to be, a fair process: CNY17 at [68]; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982 (Ex parte H) at [28]. 42 In R v Minister for Immigration and Multicultural Affairs: Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 (Epeabaka) at [78]-[80] , Kirby J explained the concept of bias in a case where the decision maker had made comments that were said to create a reasonable apprehension of bias, as follows: …[I]t is helpful to start with an explanation of the concept of "bias" in a case such as the present. One such explanation was provided in Liteky v United States [(1994) 510 US 540] by Scalia J, delivering the judgment of the Court: "The words ['bias or prejudice'] connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess (for example, a criminal juror who has been biased or prejudiced by receipt of inadmissible evidence concerning the defendant's prior criminal activities), or because it is excessive in degree (for example, a criminal juror who is so inflamed by properly admitted evidence of a defendant's prior criminal activities that he will vote guilty regardless of the facts)." As the Supreme Court of Canada pointed out, when referring to these remarks, Scalia J was careful to emphasise that not every favourable or unfavourable disposition attracts the label of bias or prejudice in this sense: "For example, it cannot be said that those who condemn Hitler are biased or prejudiced. This unfavourable disposition is objectively justifiable - in other words, it is not 'wrongful or inappropriate'." What is required for a disqualifying bias is that the condition or state of mind displayed "sways judgment and renders [the decision-maker] unable to exercise his or her functions impartially in a particular case". In 1943 Judge Frank, writing for the Second Circuit of the Court of Appeals in the United States, pointed to the obvious fact that "[t]he human mind, even at infancy, is no blank piece of paper". He went on: "We are born with predispositions; and the process of education, formal and informal, creates attitudes in all men which affect them in judging situations, attitudes which precede reasoning in particular instances and which, therefore, by definition, are pre-judices. ... Interests, points of view, preferences, are the essence of living. Only death yields complete dispassionateness, for such dispassionateness signifies utter indifference. ... The concealment of the human element in the judicial process allows that element to operate in an exaggerated manner; the sunlight of awareness has an antiseptic effect on prejudices. Freely avowing that he is a human being, the judge can and should, through self-scrutiny, prevent the operation of this class of biases." 43 The test for apprehended bias in this case is whether a hypothetical fair-minded lay person might reasonably apprehend that the Committee might not have brought an impartial mind to the resolution of the question the Committee was required to decide: cf. CNY17 at [17], [56] and [132]. Establishment of an apprehension of bias requires the taking of the following steps: (1) identification of the factor which it is postulated might have led the Committee to have decided the review otherwise than on an independent and impartial evaluation of the merits; and (2) articulation of how that factor might have led the Committee to have decided the review otherwise than on an independent and impartial evaluation of the merits: CNY17 at [21] (Kiefel CJ and Gageler J); [57] (Nettle and Gordon JJ); [132] (Edelman J); Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner) at [8]. 44 These steps provide a foundation for assessing: …whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred. In taking that third step, "it is the court's view of the public's view, not the court's own view, which is determinative": CNY17 at [21] (Kiefel CJ and Gageler J), citing Webb v The Queen (1994) 181 CLR 41 at 52. 45 Dr Hamor accepted that the reasonable apprehension of bias must be "firmly established": see, for example, Reece v Webber [2011] FCAFC 33; 192 FCR 254 (Reece) at [45] citing Re JRL; Ex parte CJL (1986) 161 CLR 342 (JRL) at 352 (Mason J). At [56], Nettle and Gordon J stated that "[a] finding of apprehended bias is not to be reached lightly" citing JRL at 371 (Dawson J). 46 In CNY17, Kiefel CJ and Gageler J (in the minority) referred to whether there was a realistic possibility that the decision maker might have been variously influenced, affected or diverted by the relevant adverse information or the realistic possibility that knowing of that information would play on the subconscious of the decision maker to the detriment of the appellant (at [23], [29], [40] and [43]). 47 In Ex parte H at [28], the relevant lay person was said to be properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. In CNY17 at [58], Nettle and Gordon JJ said that "[t]he fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made". 48 The totality of the circumstances that are relevant include the decision actually made and the reasons for the decision given by the Committee: CNY17 at [20] (Kiefel CJ and Gageler J); [135] (Edelman J). 49 However, where the matter has already been decided, the test requires no conclusion about what factors actually influenced the outcome: Ebner at [7]. Further, in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [67], the plurality cautioned: …To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been 'the crystallisation of that apprehension in a demonstration of actual prejudgment' impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. 50 The reasons for a decision will rarely be sufficient by themselves to establish an apprehension of bias, particularly because adverse findings are an inevitable part of the expression of reasons: Reece at [47]. 51 A pre-existing view, even one which has been publicly expressed, does not necessarily give rise to a reasonable apprehension of bias. In Reece at [52], the Full Court explained relevantly: The fact that a decision-maker may previously have given thought to matters under consideration does not necessarily expose a reasonable apprehension of bias: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; 122 CLR 546 at 553 to 554. Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ there observed: Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it. 52 In Ebner at [24], the plurality considered, as a convenient frame of reference, Deane J's identification in Webb v The Queen [1994] HCA 30; 181 CLR 41 (Webb) at 74 of "four distinct, though overlapping, categories of case involving disqualification by reason of the appearance of bias: interest; conduct; association; and extraneous information". Webb concerned a juror's conduct in arranging flowers for the mother of the deceased victim. Deane J noted that conduct may include the publication of statements. 53 Matters relevant to the fair-minded lay person's consideration include the following: (1) The Committee functioned as an inquisitorial body that was not bound by the rules of evidence and was entitled to inform itself on any matter in any way it thought appropriate. In Ex parte H at [30], the High Court stated relevantly: Where…credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. (2) The composition and function of the Committee assumed that the Committee members would bring to bear in reaching its decision the knowledge and experience that qualified them for appointment to the Committee, including an understanding of what constitutes "inappropriate practice": cf. Reece at [49]-[50]. 54 In Webb (at [76-78]), in considering the effect of the juror's conduct upon the fair-minded lay observer, Deane J noted a range of matters including the context of the clear directions which the trial judge gave about the need for impartiality and objectivity on the part of all jurors; whether sending flowers would indicate no more than that the juror felt the sympathy which any normal person would feel for the mother of a son who had been brutally killed and the fact that the juror's actions were contrary to clear instructions given by the trial judge about the conduct required of members of the jury. 55 In CNY17, Nettle, Gordon and Edelman JJ (Kiefel CJ and Gageler JJ dissenting) found a reasonable apprehension of bias. Nettle and Gordon JJ gave the following reasons for that conclusion (at [51]): A fair-minded lay observer, cognisant of the way Pt 7AA works, including the role of the Secretary, might have apprehended that the IAA might not have brought an impartial mind to the review, by reason of the irrelevant and prejudicial material which the IAA was mandated to consider. The source of the apprehended bias is the irrelevant and prejudicial material. That material might have led the decision-maker to make a decision otherwise than on the legal and factual merits of the case because it might have led the decision-maker to the view that the appellant was not the sort of person who should be granted a visa or that the appellant was not a person who should be believed. A fair-minded lay observer might have apprehended that this might have had an effect on the decision-maker, even if that effect was subconscious. 56 In Epeabaka, the High Court rejected a claim of apprehended bias. The plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) reasoned as follows (at [31]-[34]): [31] A fair reading of the matter published by Dr Hudson would take account of the following: 1. One of the primary points Dr Hudson sets out to make is that members of the Tribunal "try to avoid preconceptions one way or the other". 2. The remarks about the fact that some applicants tell lies are made in the context of explaining the difficulty of the Tribunal's task. One difficulty is that people who claim refugee status are often so fearful of persecution, and so desperate, that they lie. The pressures which lead people to do that are seen as an obstacle to discovering the truth; not as a reason for making anything other than an honest attempt to discover the truth. 3. Dr Hudson, in a variety of ways, stresses his sympathy for, not his antipathy towards, applicants. He concludes with what looks like an expression of desire, at a future time, to work for applicants. 4. The material is designed to emphasise how conscientious Dr Hudson is in the performance of his duties. [32] The views expressed as to the pressure of circumstances leading some applicants to lie are not peculiar to Dr Hudson. They reflect common experience, and common sense. In Abebe [v Commonwealth (1999) 197 CLR 510], Gummow and Hayne JJ said: "... the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself." [33] This was referred to as a difficulty confronting the Tribunal in the execution of its tasks. If those very words had been used by Dr Hudson, it is not easy to see what different meaning they would have given his material. [34] It is not a question of bane and antidote. It is a question of reading the remarks about applicants who tell lies in the context in which they appear. These remarks were regrettable, as was the fact that another member of the Tribunal encouraged him to "Let 'em all in". If that encouragement were meant to be taken seriously and literally, it appears to reveal pro-applicant bias in another member of the Tribunal. However, what Dr Hudson said about the difficulties created by some desperate applicants who lie would not lead to a reasonable apprehension that he might not have brought an impartial mind to bear upon an assessment of the present applicant's credibility. (footnotes omitted) 57 Generally, the decision of a collegiate body (such as the Committee in this case) may be vitiated by a finding of reasonable apprehension of bias on the part of one member of that body. The Court is "not required to enter into difficult evidentiary questions as to the extent to which that person may have influenced the majority": IW v City of Perth [1997] HCA 30; 191 CLR 1 at 50 (Gummow J).

Dr Hamor's case 58 Dr Hamor submitted that the most relevant category of those identified by Deane J in Webb is conduct. Counsel for Dr Hamor, Dr Juliet Lucy submitted that a reasonable apprehension of bias arose principally from the Committee's expression of adverse views about commercial providers of sleep treatments and the mixing of treatment and selling. The case was not that the Committee held a preconceived view that the provision of home sleep studies per se is unethical, but that the provision of home sleep studies through a commercial organisation is (or may be) unethical. Dr Lucy submitted that the Committee's conduct demonstrated that it might not be open to hearing evidence that there was nothing unethical in the manner in which Dr Hamor provided home sleep studies in conjunction with HSS. 59 Dr Lucy contended that the Commonwealth's characterisation of Dr Hamor's case as one of prejudgement was incomplete, preferring to describe it as a case where the Committee might not have had an open mind. Dr Lucy referred to "a concern about the ethics of the way in which the services are provided which is a more general concern about commercial providers of sleep studies and people who have worked with them. So there's a preconception that relates to that kind of category of provided services". 60 I accept Dr Hamor's submission that the relevant apprehension in this case is analogous to that identified in Epeabaka at [21], that is: …one based, not upon interest, or relationship, or association, but upon a form of prejudgment, or predisposition cf The Queen v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 258 per Barwick CJ, Gibbs, Stephen and Mason JJ, or, to use the words of Dawson J, "preconceptions existing independently of the case." Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 372 61 However, it is not obvious that a concern about ethics of the kind described, whether related to the ethics of Dr Hamor personally, or the ethics of commercial providers of sleep studies and medical practitioners who work with them, might cause a fair-minded lay person reasonably to apprehend that the Committee might lack impartiality in conducting its task, which was reviewing and investigating Dr Hamor's provision of services to determine if he had engaged in inappropriate practice. 62 A concern is typically something less than a preconception, prejudgment or predisposition. For example, a concern on the part of the Committee that arrangements between Dr Hamor and HSS may not have been in the best interests of his patients may be described as an ethical concern. Such a concern might cause a fair-minded lay person reasonably to expect the Committee to approach its task with scepticism or suspicion that Dr Hamor may have engaged in inappropriate practice in the provision of services affected by the arrangements. Provided that the concern was genuine and well founded, it is unlikely that such a person could reasonably conclude that the Committee might have lacked impartiality on the basis of that ethical concern. 63 As explained below, I am not persuaded that a hypothetical fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the Committee might not have brought an impartial mind to the decision before it concerning Dr Hamor. 64 It is convenient to address the matters identified by Dr Hamor as giving rise to a reasonable apprehension of bias in the chronological order in which they occurred or were exhibited by the Committee.

Practices of consultant physician Committee members

Professor Grunstein 65 The parties agreed the following facts concerning Professor Grunstein's professional background and appointments: (1) He has practised predominantly as a specialist in sleep medicine since 1988, in private consulting medical practice, clinics and academic speciality clinics. He developed the guidelines and wording for MBS item 12203 in 1989. (2) He was the President of the Australasian Sleep Association from 1994 to 1997 and the President of the World Sleep Foundation from 2007 to 2011. (3) Professor Grunstein's current roles relevantly include or included: (a) Professor of Sleep Medicine at the University of Sydney School of Medicine; (b) Head of the National Health and Medical Research Council (NHMRC) Centre for Integrated Research and Understanding of Sleep and the NHMRC Australasian Sleep Trials Network; (c) Staff specialist physician in Respiratory and Sleep Medicine at Royal Prince Alfred Hospital, Sydney; and (d) Head of the Sleep and Circadian Research Group, Woolcock Institute of Medical Research. (4) Professor Grunstein also has an honorary appointment in respiratory and sleep medicine at St Vincent's Hospital, Sydney. 66 Professor Grunstein was also the medical adviser to Sleep Disorders Australia, one of the functions of which is to advocate for the needs of people with sleep disorders. 67 Professor Grunstein's experience in performing sleep studies included performing: (1) From 1988 to 2002, approximately 1,500 attended sleep studies per year. (2) From 2002 to 2011, approximately 500 to 700 attended sleep studies per year. (3) From 2012 to 2019, approximately 2,700 sleep studies in total. Of these sleep studies: (a) approximately 205 were unattended sleep studies; and (b) approximately 2,495 were attended sleep studies. 68 Additionally, from 2010 to 2019, Professor Grunstein undertook approximately 200 patient consultations per year which involved reviewing the records of sleep studies, both attended and unattended, performed by other medical professionals. 69 As at the date of the final report, Professor Grunstein had rarely provided services that were billed to Medicare under item 12250. Between 14 March 2012 and 13 March 2019, Professor Grunstein provided services that were billed to Medicare: (1) under item 12250 on fewer than ten occasions; and (2) under MBS items 12203 and/or 12207 on approximately 1,700 occasions. 70 Of the sleep studies performed by Professor Grunstein between 14 March 2012 and 13 March 2019 that were billed to Medicare, at least 95% were attended sleep studies.

Professor Naughton 71 The parties agreed the following facts concerning Professor Naughton's professional background and appointments: (1) Professor Naughton has been practising as a consultant physician in respiratory and sleep medicine since 1992. (2) Between February 2009 and March 2010, Professor Naughton served as a member of the Advisory Panel for "Application 1130 - Home-based (unattended) sleep studies", which resulted in the introduction of MBS item numbers relating to unattended sleep studies. (3) Professor Naughton is an adjunct Professor of Medicine at Monash University and the Head of the General Respiratory and Sleep Medicine Service at the Alfred Hospital, Melbourne. (4) He is also a respiratory and sleep medicine physician at the Epworth Sleep Centre. 72 Between 14 March 2012 and 13 March 2019, Professor Naughton performed approximately 400 sleep studies per year, of which: (1) approximately 50 were unattended sleep studies; and (2) approximately 350 were attended sleep studies. 73 Additionally, Professor Naughton is or was responsible for quality assurance in relation to sleep studies performed at the Alfred Hospital and the Epworth Sleep Centre, involving: (1) approximately 750 attended sleep studies per year at the Alfred Hospital; and (2) approximately 1,700 sleep studies per year at the Epworth Sleep Centre, which comprise approximately: (a) 500 unattended sleep studies; and (b) 1,200 attended sleep studies. 74 Between 14 March 2012 and 13 March 2019, Professor Naughton provided services that were billed to Medicare: (1) under item 12250 on approximately 50 occasions per year; and (2) under MBS item 12203 and/or 12207 on approximately 70 occasions per year. 75 Of the sleep studies performed by Professor Naughton between 14 March 2012 and 13 March 2019 that were billed to Medicare, approximately 60% were attended sleep studies.

Consideration 76 The statutory framework required the Committee to include two members of Dr Hamor's speciality. The hypothetical fair-minded lay person can be taken to be aware of this requirement. 77 The practices of Professors Grunstein and Naughton, predominantly in attended sleep studies tend to indicate that they had a preference for attended sleep studies over unattended sleep studies, but not that they might have held an opinion or disposition adverse to Dr Hamor as a provider of unattended sleep studies in conjunction with HSS. 78 I accept Dr Hamor's submission that it can be inferred that Professor Grunstein and Naughton have not worked in conjunction with a commercial organisation which facilitates sleep studies and also sells sleep products. However, again, without more, I do not accept that the hypothetical fair-minded lay person could have reasonably considered that this is a matter that reflects some disposition or opinion adverse to those who conduct a different type of practice within the same speciality, and specifically, some disposition or opinion adverse to those who conduct the kind of practice conducted by Dr Hamor.

Professor Grunstein's public posts 79 First, Dr Hamor referred to public posts made by Professor Grunstein on Facebook and blogs. The first four of these posts were published before the Professor was appointed to the Committee; the last was made after the appointment. Professor Grunstein's views expressed online were: (1) On 8 November 2014, "The home care market created by CPAP sales is unfortunately distorting our sense of professionalism, vision and the reputation of our field. Its (sic) a horse race to the bottom…The proliferation of undertrained and mercenary-focused agencies now in sleep home care marketplace makes you wonder about the quality of our consumer protection." (2) On 7 December 2014, "In the totally deregulated setting we have in Australia, it is increasingly common that 'patients' are being commenced on CPAP without having seen any medical practitioner... Vertical integration industry models push for this approach as they see doctors as potential barriers to a CPAP sale as they may actually talk to the patient discussing need for treatment or treatment alternatives. We also see mindless automated reporting of home studies by doctors who seemingly only recommend a CPAP machine conveniently sold by the supplier of home studies." (3) On 6 August 2015, "…unfortunately treatments like CPAP are available without medical prescription. Moreover, how would you feel if doctors were personally benefiting from the sale of blood pressure tablets or asthma medications - to be honest, the whole system is a mess and I am not sure you can unscramble the egg." The article to which Professor Grunstein provides a link following this comment begins: "There are fears that many patients visiting commercial sleep clinics are being wrongly diagnosed with conditions so they will pay thousands of dollars for medical equipment they don't need." (4) On 9 March 2016, "CPAP needs to be on prescription - that's (sic) the only way to ensure patients aren't sold machines they don't need." (5) On 29 August 2017, by posting a newspaper article in which Professor Grunstein is quoted as saying "sleep apnoea companies… are all out there trying to flog their products' and 'Given the rising commercialisation of sleep… there will need to be regulation to protect consumers." 80 These posts, taken together, would convey to a fair-minded lay person that Professor Grunstein held strong views to the effect that sleep medicine is being improperly commoditised by the sale of sleep products, particularly CPAP machines. Dr Hamor did not argue that such views are wrong or inappropriate. 81 Dr Hamor submitted that the posts also convey a strong view that the improper commoditisation of sleep medicine has distorted the professionalism of medical practitioners involved in home sleep studies. I do not agree that such a view is conveyed. In my opinion, Professor Grunstein's posts convey different negative opinions about medical practitioners. First, the distorted sense of professionalism identified by Professor Grunstein exists more broadly than Dr Hamor suggests and extends to medical practitioners whose patients or potential patients may purchase CPAP machines, including (at least, on a literal interpretation) Professor Grunstein himself. Second, Professor Grunstein conveys an adverse view of "mindless" doctors engaged in "automated reporting of home studies" and "who seemingly only recommend a CPAP machine conveniently sold by the supplier of home studies". Third, Professor Grunstein conveys his adverse view of doctors who personally benefit from the sale of CPAP machines. Fourth, Professor Grunstein conveys a view that many patients visiting "commercial sleep clinics" are being wrongly diagnosed, inferentially by medical practitioners working for or with those clinics. 82 Dr Hamor submitted that Professor Grunstein's posts include suggestions that medical practitioners act unethically when they function within the home care market, particularly when they stand to profit or to gain a benefit from the sale of CPAP machines. I do not agree that a fair-minded lay person would understand Professor Grunstein to hold a general belief that medical practitioners act unethically when they function within the home care market. However, I accept that Professor Grunstein's posts convey a view that medical practitioners act unethically when they stand to profit or to gain a benefit from the sale of CPAP machines. A similar view was expressed by Dr Hamor at the hearing, when he said: …certain people, amongst our colleagues, not only diagnose but sell. And that is unconscionable, in my view… 83 Dr Hamor submitted that the posts "condemn companies which profit from selling CPAP machines and many of the professionals who work with them, and convey a perception that they are unethical". I do not accept this submission. Rather, the posts convey Professor Grunstein's view that companies that sell CPAP machines should be regulated to protect consumers. They also convey Professor Grunstein's views that there are medical practitioners working with companies that sell CPAP machines and who are deserving of criticism for: (1) automated reporting of home studies, and for seemingly only to recommend a CPAP machine conveniently sold by the supplier of home studies; (2) personally benefitting from the sale of CPAP machines, or standing to profit or to gain a benefit from the sale of CPAP machines; (3) wrongly diagnosing patients who visit commercial sleep clinics. 84 Dr Hamor also referred to Professor Grunstein's conduct in posting the "PSR Director's Update for September 2017" with the comment "Inappropriate practice with sleep studies reported by PSR Director". There was no suggestion that this was an inaccurate comment in relation to the relevant contents of the Update. 85 The Update included a report of agreements entered into by the Director and persons under review in accordance with s 92 of the Act. As reported, the agreements each included an acknowledgement by the relevant practitioner of inappropriate practice. The Update referred to an agreement with a consultant sleep and respiratory physician, in connection with the practitioner's rendering of MBS items 11503 and 12203 (that is, apparently not in connection with home sleep studies). 86 In the context of the Professor's other posts, Dr Hamor contends that this implies that the Professor supports the Director's identification and targeting of inappropriate practice. To the extent that the Professor implied that he is against inappropriate practice, the complaint lacks substance. However, Dr Hamor contended that the Professor's apparent alignment with the Director might therefore contribute to a perception that Professor Grunstein might lack impartiality in Dr Hamor's case. Dr Hamor noted that the PSR Director was the Acting Director who referred Dr Hamor's matter to the Committee and furnished the Committee with a report expressing various concerns and criticisms of Dr Hamor. The report suggested that the general body of sleep physicians may consider that Dr Hamor engaged in inappropriate practice. 87 I am not persuaded that the Professor's post containing, as it did, a spare and accurate comment, might provide any reason for a fair-minded lay person to consider that the Professor might lack impartiality in Dr Hamor's case. 88 In response to the Professor's post, Michelle Chadwick (director of Sleep Disorders Australia) left the following comment: Wrong of the PSR not to name them, also wrong that none of the doctors were referred for fraud. Are we to accept that in every instance these were honest "mistakes"? 89 Dr Hamor submitted that, in the absence of any corrective or qualifying reply from Professor Grunstein, the post when displayed with Ms Chadwick's comment, conveyed the impression that Professor Grunstein (and Ms Chadwick) considered that there were many other sleep physicians who were fraudulent who should be prosecuted. I do not accept this submission. A fair reading of Ms Chadwick's comment is that the relevant doctors are those whose agreements under s 92 were reported in the Update. Only one of them was a consultant sleep and respiratory physician. This material is not capable of conveying a view held by Professor Grunstein as to the existence of many other fraudulent sleep physicians. 90 Dr Hamor submitted that the impression was strengthened by Professor Grunstein's 23 December 2017 post of a Newsplex.com article entitled "Former sleep-study center owner pleads to fraud charges". In response, Ms Chadwick made the following comment: Interesting different approach by US authorities. Australian sleep specialist defrauds the federal government (via Medicare) of $2 million and he isn't even publicly named much less criminally charged. Simply ordered to pay it back. 91 Ms Chadwick's comment refers to the s 92 agreement reported in the Update. 92 Again, I do not accept that this post (read with Ms Chadwick's response) conveys a view held by Professor Grunstein as to the existence of many other fraudulent sleep physicians. Dr Hamor's post does not refer to a medical practitioner at all, but rather to a sleep study centre owner. Neither the post nor Ms Chadwick's comment conveys anything about the possible prevalence of fraudulent sleep physicians. 93 Dr Hamor next referred to Professor Grunstein's reposting, on 6 November 2018, of a post entitled "Hypersomnolence Australia - Advocating for Idiopathic Hypersomnia". Professor Grunstein's repost was accompanied by the following statement: The problem is you have commercial interests lobbying for home sleep studies to help sell more products as has happened with both Federal and State Governments in the [past] 6-7 years. Subsequently, the important scientific and clinical reality of the need for full sleep studies is not understood. This is why the full sleep study item number I spent 18 months negotiating in 1988-89 was almost terminated till patient advocates and ASA started to push back. It will be interesting to see data on sleep studies over the next 12-18 months but we still won't have a clue on quality. 94 Ms Chadwick is the founder and director of Hypersomnolence Australia. Ms Chadwick responded with the following comment: Thank you for sharing. You're right, governments don't understand the importance of full sleep studies. I'm grateful you fought for an item number for them 30 years ago and I'm glad I could help keep it. But yes quality is an issue particularly when we now know that MSLT [Multiple Sleep Latency Test] is far from the gold standard it was once considered to be. Waking someone with IH for the MSLT prevents the recording of the extended sleep typical of IH so 24hr PSG would probably be more helpful. 95 Dr Hamor contended that these posts contributed to a perception that the Professor was advocating against the "commercial interests" which he perceived as lobbying for home sleep studies and in favour of more attended sleep studies. I accept that a fair-minded lay person would understand that Professor Grunstein was advocating against "commercial interests lobbying for home sleep studies" including on the basis that their activities had been detrimental to a proper understanding of the need for full sleep studies. 96 On 12 November 2019, eight months after the final report, Professor Grunstein posted an article on Facebook from the journal The Limbic, entitled "MBS sleep test restrictions lead to hospital waiting list blowouts", accompanied by the following comment: In the end what is happening is a net decrease in the quality of the clinical opinion provided to patients. They deserve better. What is happening is direct to patient sales of equipment by pharmacy chains and CPAP manufacturers backed by heavy marketing (my Facebook is inundated). How do you make patients aware of the breadth of treatments available now, explain risk etc without a qualified person talking to them? Its like no-one has read the Parliamentary Inquiry into Sleep Health recommendations. I would argue its not just GPs who need more education, its also the specialists that the GP refer to! The guidelines for sleep medicine training are sup-optimal and need to be updated. 97 I accept that an article post-dating the Committee's review may be relevant to an apprehension of bias on the part of the Committee: cf. CUR24 v Director of Public Prosecutions (NSW) [2012] NSWCA 65; 83 NSWLR 385 at [39]. 98 Dr Hamor submitted that the 12 November 2019 post tends to confirm the impression created by Professor Grunstein's earlier posts that he considers that medical practitioners, including specialists, generally need further education because they provide patients with inadequate advice within the home care market created by CPAP sales. I do not agree that a fair-minded lay person would gain the impression that Professor Grunstein's concerns are restricted to practitioners within the home care market created by CPAP sales. The 12 November 2019 post conveys a view that patients require advice from medical practitioners in relation to the purchase of CPAP machines and, more relevantly to this case, that specialists in the field of sleep medicine generally require more education to provide patients with adequate advice, especially about the breadth of treatments available.

Summary 99 Professor Grunstein's posts reveal that he holds strong views about the proper conduct of sleep medicine. He has been an advocate against "commercial interests lobbying for home sleep studies" including on the basis that their activities have been detrimental to a proper understanding of the need for full sleep studies. 100 Professor Grunstein has publicly expressed the following views of potential relevance to the review of Dr Hamor's conduct: (1) Sleep medicine is being improperly commoditised by the sale of sleep products, particularly CPAP machines. (2) The improper commoditisation of sleep medicine has distorted the sense of professionalism of all medical practitioners whose patients or potential patients may purchase CPAP machines. (3) There are medical practitioners working with companies that sell CPAP machines and who are deserving of criticism for: (a) automated reporting of home studies and for seemingly only to recommend a CPAP machine conveniently sold by the supplier of home studies; (b) personally benefitting from the sale of CPAP machines, or standing to profit or to gain a benefit from the sale of CPAP machines; (c) wrongly diagnosing patients who visit commercial sleep clinics. (4) Medical practitioners act unethically when they stand to profit or to gain a benefit from the sale of CPAP machines. (5) Specialists in the field of sleep medicine require more education to provide patients with adequate advice, especially about the breadth of treatments available.

Consideration 101 Professor Grunstein's appointment to the Committee was ad hoc. A fair-minded lay person would be unlikely to expect a temporary appointee to refrain from public comment in the same way, for example, as is customary for judges. 102 The posts do not suggest that Professor Grunstein held an adverse view about Dr Hamor. Nor do they suggest that Professor Grunstein held an adverse view about specialists who conduct home sleep studies in conjunction with companies that sell CPAP machines per se, except to the extent that they form part of the wider class of medical practitioners whose patients or potential patients may purchase CPAP machines. 103 None of Professor Grunstein's posts convey strong views about any matter of direct relevance to Dr Hamor's practices in the provision of home sleep studies, such as what constitutes adequate supervision of technicians or scorers. While his comments indicate a view that home sleep studies may be used in cases where a full sleep study is more appropriate, there is nothing to indicate such a view is wrongful or inappropriate. Dr Hamor did not seek to demonstrate that Professor Grunstein's conduct as a member of the Committee suggested that the Professor considered one or more of the opinions expressed in the posts was applicable to Dr Hamor. Nor was it suggested that Professor Grunstein believed HSS to be among the commercial interests lobbying for home sleep studies to help sell more products. 104 As the Commonwealth noted: (1) None of the posts suggest, expressly or impliedly, that all or even most medical practitioners who conduct home sleep studies (including those with relationships with commercial providers) operate in an inappropriate manner. (2) The focus of most of the complaints concern the de-medicalisation of treatment for sleep disorders and, in particular, the tendency of patients to be assessed and treated by unqualified or insufficiently qualified people who are not doctors. (3) The posts do not criticise Dr Hamor or HSS directly. Dr Grunstein's statements reveal his general opinions as to appropriate medical care. (4) To the extent some of the posts are framed using strong language, the fair-minded lay bystander would appreciate that the posts are made in the context of social media and the language used does not depart from the usual norms of discourse in that context. (5) To the extent the posts involve Professor Grunstein referring to articles written by others, whilst this might be seen as a general endorsement of the contents of the article, the fair-minded lay person would not take this to mean that Professor Grunstein necessarily agreed with every aspect of the article. Similarly, where other persons have commented on Professor Grunstein's posts, the fair-minded lay person would not attribute those views to Professor Grunstein.

Dr Napier 105 Early during the 4 May 2017 hearing, Dr Hamor commenced his evidence to the Committee. After Dr Napier asked him to summarise his training and experience, and some supplementary questions directed to that topic, Dr Napier asked a series of questions about the equipment at the premises where Dr Hamor worked at Wollongong and Miranda. This included the following passage (at p 16 of the transcript): Dr Napier: Okay. And would you have had say CPAP machines or mouth guards or any other equipment to show patients? Or… Dr Hamor: Definitely, yes. … Dr Hamor: So I've got CPAP machines there to demonstrate - only one - well, there's two. I've got two CPAP machines and I've got a SomnoMed mouthguard to show people what an oral device might look like. Dr Napier: And would you have had those at Wollongong as well? Dr Hamor: CPAP machines definitely. Dr Napier: Mm'hm. Dr Hamor: And in fact there's a whole array of CPAP machines there because it's a clinic that provides for that sort of service to patients. I'm not sure whether there's an oral device there. Dr Napier: Okay. And does that clinic then provide CPAP machines to patients? Does that sell CPAP machines? Dr Hamor: Exactly - they do. Dr Napier: Yes. Is that at Miranda as well? Dr Hamor: No. I specifically divest myself of any sort of commercial activity associated with providing equipment of any sort to patients. Dr Napier: So who owns Wollongong? Dr Hamor: Who owns Wollongong? It's a franchise of Healthy Sleep Solutions which is now owned by Air Liquide. 106 Dr Napier's questions undoubtedly convey an interest in the commercial arrangements that might have affected Dr Hamor's provision of the home sleep studies. 107 After further questions and answers directed mainly to the days and hours of Dr Hamor's practices, there is the following exchange (p 19 of the transcript): Dr Napier: So when the clinic opened in the afternoon at Wollongong what sort of consultations would occur? Dr Hamor: So exactly the same thing as I would do for a tele-consultation. Dr Napier: Mm'hm. Dr Hamor: So the patients are requested to come into the clinic. They would have certain questions to ask. The technicians might - or the referring general practitioner might. They all come with a general practice referral obviously. Dr Napier: Mm'hm. Dr Hamor: So there are various issues. So, "Can you please discuss options for Mr Jones apart from CPAP which you recommended on your report?" Or, "There is a problem with compliance. Can you help with suggesting compliance with CPAP." Or, "There has been a suggestion on the report that they shouldn't be driving." So, "Can you please review a download from the CPAP machine and see whether you would be prepared to write a report and complete the RMS forms on Mr Jones' behalf so that they're allowed to drive." So there are various of these sorts of issues that - - - Dr Napier: And at Wollongong they have the CPAP machines - a variety of CPAP machines that could be sold to patients but it wasn't of benefit for you. It would have been of benefit to Healthy Sleep Solutions. Dr Hamor: Yes. So my practice is, I suppose, an adjunct to the clinic. The clinic's purpose is to have patients assessed for sleep apnoea and then provided the doctor's report suggests that they should have a trial or they need CPAP - even without a trial if they've got very severe OSA then they would offer the patients - their patients to sell them or rent them or whatever. The CPAP machine but I don't deal with that side of things at all. 108 Dr Hamor submitted that Dr Napier's comment that the sale of CPAP machines "would have been to the benefit of" HSS was a gratuitous criticism of HSS without any evidence about the commercial arrangements of HSS or its practices in selling machines. I do not agree that this comment is fairly capable of being understood as a criticism of HSS. The fact that a business benefits from the sale of a product is not a matter for criticism, without more. A fair-minded lay person would have understood this comment to indicate Dr Napier's understanding (confirmed by Dr Hamor) as to the flow of funds in connection with CPAP machines that could have been sold to patients at the Wollongong clinic. This passage of transcript reinforces the impression conveyed by the earlier passage that Dr Napier was seeking to understand the commercial arrangements that might have affected Dr Hamor's provision of the item 12250 services. That was a legitimate and unremarkable line of inquiry. 109 Contrary to Dr Hamor's contention, the questions and comments set out above are not capable of indicating to a fair-mind lay person that Dr Napier held a view to the effect that commercial organisations providing sleep studies profit unethically or improperly from patients.

Professor Naughton and Dr Napier 110 During the mid-afternoon of the second day of the hearing (5 May 2017), Dr Hamor was still giving evidence to the Committee and was being asked questions about his use of teleconferences, in connection with an identified patient. In that context, there was the following exchange: (p 211 of the transcript) Professor Naughton: I just want to draw your attention to the fact that on the sleep study you reported - well, the report - the scorer said it was normal sinus rhythm but in your letter you state that he's got chronic atrial fibrillation. That's just one point. Just a contradiction. But the second point I just want to make is that he will consider having a trial organised of CPAP through Healthy Sleep Solutions and a copy of this goes to Chris Hackett who I assume is also employed by Healthy Sleep Solutions. Dr Hamor: She's a franchisee. Professor Naughton: A franchisee. So the question I put to you is are patients given a choice about where to get their CPAP trial? Dr Hamor: Their original sleep study was conducted through this franchisee. The GP has a relationship with that franchisee. Whether the GP would like them to go or give them the option I really don't know but I suspect that the franchisee or the technician has a reasonable relationship with that patient and it's my guess that they would be happy to continue that relationship. Professor Naughton: Okay. I'd just like to voice my concern that I can't see anywhere involved in this that a sleep position is involved. We know adherence to CPAP is around about 50 percent. We've got a person here - who has got significant cardiovascular issues. And I am also concerned that the choice of treatments and particularly the choice of CPAP providers is not adequate. 111 After some further questions, including in connection with different patients, there is the following passage (p 218 of the transcript): Professor Naughton: Okay. So my concern is that availability of other CPAP providers is not evident for this - within the diagnosis - the diagnosis and the treatment is being done within by the same company which I assume is Healthy Sleep Solutions and that worries me. It's a concern I have. Dr Napier: Do you have any questions or anything to add? Dr Hamor: Can I ask what the concern is? Professor Naughton: Ah - my concern is that twice we've seen where the diagnostic test has been performed by the franchisee of the diagnostic - of Healthy Sleep Solutions - who I believe are also selling the device. So they're on the diagnosis and sale of treatment. That's my concern. So there's a diagnosis and there's the pecuniary advantage of doing a test and the pecuniary advantage of selling the treatment. And just ensuring that the patient has got adequate options displayed. That's my concern. Dr Hamor: Can I address that? Dr Napier: Mm. Dr Hamor: So the first point is that the GP has the right to refer the patient to any diagnostic centre they wish. Whether that's a centre that solely provides home sleep studies or whether it's to a sleep laboratory or whether it's a sleep physician in the first instance it's up to the GP to decide what they do. Once the GP has made that referral the patient has formed some kind of a relationship with that person. Now, if that GP had referred the patient to some other centre who also performed home sleep studies and sells CPAP equipment exactly the same format would have occurred. What I think is more relevant and it's totally outside the scope of this meeting or this jurisdiction is the fact that certain people, amongst our colleagues, not only diagnose but sell. And that is unconscionable, in my view, but the fact that a commercial organisation which organises a diagnostic test and provides the equipment is totally fair and reasonable - number one - and number two, the patient has the choice of going somewhere else to purchase their equipment. No one twists their arm. 112 Two pages later in the transcript, there are the following observations by the Committee: Professor Grunstein: …I think you've raised some important points there but I think it'd be fair to say that most GPs kind of don't know much about this area and the difference between CPAP and dental splints and what people should be recommended and so forth. And I would - my concern would be without clear recommendation from yourself or information that's given to the patient as part of the test that they make them aware that they have a choice of where to go and what treatment to have. I mean - you know - I think that - anyway, we can go on but I'm not sure that's - you know - it's a complexity that may be beyond the 12250 at this stage. Professor Naughton: I still remain reserved. I am aware of the College of Physicians ethics about diagnosing and sleep apnoea, and selling CPAP under the one corporate roof. That's what I'm concerned about. Dr Napier: Thank you. I think that there's always an awareness that patients must be given choice and told of choice and certainly it's important for GP's as well as specialists to be able to say there are other places that you can get this from. Local pharmacies often provided CPAP machines too. So it's just a choice that's not clearly documents within the records that we can see. That's a comment that can be made. 113 Dr Hamor argued that Professor Naughton's and Dr Napier's concerns and observations, expressed at the hearing and set out above, were not relevant to the question of whether Dr Hamor's conduct under review would be unacceptable to the general body of consultant physicians in his speciality. Further, Dr Hamor argued, there was no evidence about the choice of treatments or CPAP providers generally offered to patients of HSS. Dr Hamor noted that he told the Committee that the GP who received his report could refer the patient to any provider of CPAP machines and, in his practice, Dr Hamor gave patients a choice of two or three referrals. 114 A fair-minded lay person would understand that the hearing was an occasion for the Committee to investigate, among other things, what facts were relevant to the provision of the relevant services. A fair-minded lay person would also appreciate that, by expressing concerns, the Committee gave Dr Hamor an opportunity to address them, including by submitting that they were irrelevant. Thus, the hypothetical fair-minded lay person would not be concerned about the impartiality of the Committee based on the concerns identified above, particularly where they were expressed as "concerns" and were followed by an opportunity for Dr Hamor to make submissions on the draft report. 115 I accept that a fair-minded lay person would have concluded that Professor Naughton's and Dr Napier's concerns and observations were probably irrelevant to the review to the extent that the item 12250 services provided by Dr Hamor were diagnostic in nature. Dr Grunstein appears to have acknowledged that possibility when he said "it's a complexity that may be beyond the 12250 at this stage". However, there was evidence that Dr Hamor produced reports that included recommendations and that Dr Hamor expected GPs to consider his recommendations in advising the patients. Dr Hamor himself said: "I'm not just saying I'm a reporter. I do make recommendations". Thus, one report included the following (sample case 17): Recommendations: Urgent treatment with CPAP with monitoring of treatment efficacy and compliance is indicated…. Another included the following (sample case 20): Recommendations: CPAP trial suggested. 116 Professor Naughton's questions would convey to a fair-minded lay person a concern about whether Dr Hamor's patients received adequate information about treatment options because of HSS's role in provision of the home sleep studies and the sale of treatments. Professor Naughton's statement set out at [112] would convey to a fair-minded lay person that the Professor was concerned that Dr Hamor may have breached an ethical duty set by the College of Physicians, although the precise breach or breaches is not articulated. 117 Where Dr Hamor provided reports as part of the item 12250 services that included treatment recommendations, at least on occasions, I do not accept that a fair-minded lay person might have considered it indicative of a possible lack of impartiality for the Committee to raise issues of this kind. Rather, a fair-minded lay person would understand Dr Naughton to be investigating whether Dr Hamor engaged in inappropriate practice having regard to the context in which the item 12250 services were provided, and to be raising concerns for Dr Hamor's response. A fair-minded lay person would understand Dr Napier to be expressing a legitimate view that patients must be given choices, of potential relevance to the recommendations given by Dr Hamor when reporting on the home sleep studies.

Professor Grunstein 118 On the afternoon of 4 May 2017, the Committee examined the service provided to the patient in sample case 1. Dr Hamor stated that he did not disagree with the concern, expressed by Professors Grunstein and Naughton, that the potential of hypoventilation syndrome was not really conveyed in the report of the service "and with I guess a stronger recommendation to get an opinion from a specialist". Professor Grunstein then asked some questions concerning Dr Hamor's evidence that he did not see his role as a consultant phsyciain, but more like a radiologist looking at an x-ray. There was then a debate about Dr Hamor's statement that "[t]he item says to rule out sleep apnoea. That's how I see the role". A little later, there was the following exchange (p 74 of the transcript): Dr Hamor: You know, when - he wasn't orally hypoxic during sleep. He had apnoeas during sleep. So I don't disagree with you, but I'm reporting that the study for investigation of sleep apnoea - - - Professor Grunstein: I accept that. I mean, you know, I hear what you're saying. But I guess my concern continues in the sense that with this particular patient, would you say the likely event based on your report back to the GP would be that the GP would contact Healthy Sleep Solutions, and the local franchisee, and they would put that person on a CPAP machine? Dr Hamor: I think that's the first thing that I would expect. The second thing I would expect is that they take my recommendation on board and they refer it to a sleep physician as well. 119 A fair-minded lay person would understand Professor Grunstein's question to reflect a concern about the adequacy of patient care where Dr Hamor stated that his role in the provision of item 12250 services was "to rule out sleep apnoea". 120 Dr Hamor submitted that Professor Grunstein's concern was expressed by reference to a set of speculative hypotheses, and thus was not relevant to an assessment of Dr Hamor's conduct. I accept that a fair-minded lay person would recognise that Professor Grunstein had put a hypothetical case. However, as for the comments of Professor Naughton and Dr Napier, I do not accept that a fair-minded lay person might have considered it indicative of a possible lack of impartiality for the Professor Grunstein to explore the implications of Dr Hamor's understanding of his role in providing home sleep studies, or to use hypotheses in attempting to do that exploration (particularly where Dr Hamor agreed that he expected that the GP would act in the manner postulated by Professor Grunstein). 121 On the second day of the hearing, in between the observations of Professor Naughton recorded above, Professor Grunstein made the following observations: …the point here, I think what Professor Naughton is raising is to what degree is patients informed about their choice of … providers and also many of the cases I guess that are randomly selected - their - you know - CPAP or dental splint or weight loss or these are multiple recommendations of yours but when it comes down to it for exactly the reason that you outline that the technician needs to get something more out of this you would wonder whether there's a - let's say - a degree of influence on the patient that may not be something that you would want to happen. 122 Dr Hamor submitted that there was no evidence that any technicians working for HSS improperly influenced patients or even that the local franchisee have ever sold CPAP machines to Dr Hamor's patients. Dr Hamor submitted: The repeated expression of concern by members of the Committee about Healthy Sleep Solutions and its franchisees, without evidence to support the serious allegations made about their ethics and financial practices, gave rise to or contributed to a reasonable apprehension of bias. The comments were capable of indicating to a fair-minded lay person that the Committee might decide Dr Hamor's case otherwise than on its legal and factual merits. This is because Committee members questioned the ethics and integrity of persons working at or with Healthy Sleep Solutions without evidence of any wrongdoing, and appeared to attribute the perceived unethical conduct of that company to Dr Hamor, again without evidence. 123 A fair-minded lay person would understand the Committee to have had concerns that it was not in the best interests of Dr Hamor's patients that HSS was involved in the provision of home sleep studies as well as the sale of CPAP machines. This concern had an evidentiary basis: there was no dispute that HSS conducted a business involving sleep studies and sale of CPAP machines. Further, as Dr Hamor himself acknowledged, it was "unconscionable" for physicians to "not only diagnose but sell". It follows that it was not unreasonable or inappropriate for the Committee to investigate and question whether Dr Hamor's arrangements with HSS placed him in substantially the same situation as the one that Dr Hamor identified as "unconscionable". 124 A fair-minded lay person would also appreciate that it may be relevant to consider risks arising from Dr Hamor's provision of his services in conjunction with HSS, and not only whether there was evidence that such risks had eventuated. Thus, it was not inappropriate to question whether HSS technicians, in respect of whom it was at least arguable that Dr Hamor had an obligation of supervision (in accordance with accepted medical practice), might have been in a position to exercise influence over patients about treatment choices.

Home sleep studies for metropolitan patients 125 During the hearing, Professor Naughton raised the apparent metropolitan location of the patient in four cases. The questions would indicate to a fair-minded lay person that he doubted the appropriateness of conducting a home sleep study for these patients by reason of their location. As Dr Hamor observed, item 12250 does not impose any location criteria for the patient. However, when Dr Hamor questioned the reason for Professor Naughton's references to patient locations, Professor Naughton responded as follows: Because you yesterday told us the point of doing these tests was to assist the access to sleep services in people in rural Australia. 126 Dr Hamor did not submit that Professor Naughton had misunderstood his evidence. In this context, Professor Naughton's questioning is unremarkable: it is relevant both to the appropriateness of the provision of the services by reference to Dr Hamor's identification of the purpose of home sleep studies and to Dr Hamor's credit because it raised with him an apparent inconsistency in his evidence.

Complex patients 127 Dr Hamor noted that, during the review period, item 12250 did not distinguish between complicated and uncomplicated patients. After 1 November 2018, the item number was changed to apply only to less complex patients. 128 Dr Hamor referred to an observation by Professor Grunstein during the hearing, in the following passage of the transcript: Professor Grunstein:…My view is this patient is quite complex. It would not be my practice to refer this patient to a home sleep study but would feel that they would require specialist consultation and consideration for full body sonography. That's my view and my concern and I share Professor Naughton's concerns and my previous concerns remain. Dr Napier: Doctor Hamor, would you like to make any comments regarding that particular service? 129 The fact that the item number was changed after the review period to apply to less complex patients is a strong indicator that it was not wrongful or inappropriate for Professor Grunstein to hold the opinion that the complexity of the patient was relevant to whether it was appropriate practice to do the home sleep study in her case. Accordingly, a fair-minded lay person would not have questioned Professor Grunstein's identification of his practice in relation to a complex patient for Dr Hamor's comment.

Location and qualifications of scorers 130 Dr Hamor submitted that the Committee's discussion of the scorers implied that they were inadequately qualified. He submitted that there was no evidence for such a finding. 131 When the issue of the scorers' qualifications was first raised at the hearing, there was the following exchange: Dr Napier: Who does the scoring? Dr Hamor: The scoring is done via external scorers. Dr Napier: Who are they? Dr Hamor: They're a group of qualified sleep technologists who - the group is actually based in India. Dr Napier: In India? Dr Hamor: In India, yes. Virtually all sleep laboratories use external scorers, some of whom are overseas scorers, some of whom are local scorers. But that's the way sleep medicine has evolved, so that --- Dr Napier: Do you see the raw data? Dr Hamor: I can see the raw data. Dr Napier: Do you generally see the raw data? Dr Hamor: No, I don't generally see the raw data. Dr Napier: Who trains the scorers? What's the quality assurance with the scorers? Dr Hamor: So the ones that are used for Healthy Sleep, David Cannington has actually overseen - oversaw? Overseen? Supervised their training. He has set up a model, and he is - made sure that there is quality assurance processes in place. Dr Napier: How does he do that? I mean, you're using that facility, so that quality assurance is - to us to make - you know, as practitioners to ensure that there is some quality assurance --- Dr Hamor: The quality is assurance again is in a document. Mr Davey: In exhibit 5, Madam Chair, there is a document which is - related to a company, Sleep Care Solutions --- Dr Hamor: Cure. Mr Davey: Cure? I need new glasses. I apologise. Sleep Cure Solutions. Dr Napier: Sleep Cure Solutions? Mr Davey: It is one of the documents which made up part of exhibit 5. Dr Napier: Thank you. Mr Davey: That sets out, perhaps, an answer to all of these questions about who these external sleep scorers are, how they're accredited, what qualifications they have, et cetera. By all means ask the questions, but that document might assist. Dr Napier: Okay. So the qualifications that the scorers have are --- Dr Hamor: They have sleep technology, or sleep technologist qualifications. Dr Napier: From where? Dr Cunnington? Or from Australia? Or from India? Dr Hamor: To be perfectly honest, I don't really know. I know that David was responsible for - sorry, Dr Cunnington was responsible for setting up that model, and the quality assurance is supervised not only by --- Dr Napier: There's no formal qualification that these scorers have as far as you're aware? Dr Hamor: If I could refer to that document. Dr Napier: Yes. Dr Hamor: So in that document it says, "We regularly undertake the AASM into scorer proficiency testing, which the AASM currently offer for North American centres." They have inter-scorer reliability between --- Dr Napier: So that's amongst themselves? Dr Hamor: That's amongst themselves. … Dr Hamor: So Mr Davey has just showed me a certificate from the American Board of Sleep Medicine mentioning one of the scorers qualified as a registered sleep technologist. So presumably all of the scorers within that group have that same qualification. 132 Thus, Dr Hamor gave evidence that the scorers were "qualified sleep technologists" but, when tested, Dr Hamor ultimately gave evidence on the basis of a presumption that the scorers were qualified as registered sleep technologists by the American Board of Sleep Medicine. 133 The Committee's discussion of the scorers, about which Dr Hamor complained, comprised the following two comments: Professor Naughton:…I notice this patient had no slow wave sleep. That is actually reported. Usually - I mean, there was a zero on this man, so it didn't appear in your report. Then finally when you get - when you're looking at the raw data that's been scored in India by a so-called accredited sleep scorer, do you ever override those? And Professor Grunstein:…I guess I just wanted to - maybe express my concern that if we're talking about sleep staging and we're talking about particularly sleep staging REM sleep that it - I just find it hard to comprehend how a sleep scorer in India with these apparent qualifications and a quality assurance program set up by them and Dr Cunnington would be able to confidently score studies for REM sleep without the combination of EEG, EOG and EMG? It's just - I just have a concern there and I understand what you've said but that concerns me from a quality assurance point of view that you can get that reliable scoring without those three variables. 134 A fair-minded lay observer would recognise from these statements that the Committee members were expressing scepticism where the evidence had not, to this point, demonstrated the qualifications of the scorers beyond Dr Hamor's assertion and an assertion in a document about Sleep Cure Solutions. Contrary to Dr Hamor's submissions, the two comments set out above do not imply that the scorers were inadequately qualified. 135 Dr Hamor referred to the Committee's repeated references to the location of the scorers in India. For example, the Committee referred to scorers "located in India" 27 times in the final report and with similar frequency in the draft report. 136 In the draft report, the Committee rejected Dr Hamor's submission that the Committee had made "numerous inappropriate comments about the ethnicity of the scorers". That submission was not repeated in this Court, no doubt reflecting the distinction between identifying the scorers as located in India (a comment about geography), as opposed to identifying the scorers was Indian (a comment about ethnicity). 137 A fair-minded lay person would consider the Committee's repeated references to the location of the scorers to indicate scepticism as to Dr Hamor's practical capacity to supervise adequately the scorers. Contrary to Dr Hamor's submission, it is not obvious that the location of the scorers was irrelevant. That would depend upon the nature and extent of the obligation upon Dr Hamor to provide supervision, and whether any obligation was discharged adequately, having regard to the physical distance between Dr Hamor and the scorers. 138 Further, a fair-minded lay person would observe that many of the references to the scorers' location appear in the analysis of the sample cases where the Committee has made similar findings where they applied in relation to more than one sample case. Thus, for all of the sample cases except two, there is a finding to the following effect: On [x date], a letter was sent on behalf of Dr Hamor…notwithstanding that Dr Hamor was not contacted in relation to this patient until after he received the scored data of the overnight sleep study from the scorer located in India at a later date.

Google searches 139 During the hearing, Professor Naughton searched the location of a patient and determined that he lived in suburban Fremantle. Later, Professor Naughton did a search for the meanings of "OSA". The former search provided the basis for a question to Dr Hamor about whether the patient would have been better served by having a sleep clinician assess them, and then take responsibility for the sleep test. The latter search provided the basis for a question to Dr Hamor about whether the diagnosis "Horrendous OSA" provided insufficient diagnosis to a GP. 140 A fair-minded lay person would have considered these searches to be unremarkable, and to reflect Professor Naughton's conscientiousness in endeavouring to provide a factual basis for issues that he sought to investigate with Dr Hamor.

Generally 141 The portions of the transcript identified by Dr Hamor do not suggest an inappropriate or unfairly challenging style of questioning by the Committee, or that the repeated expression of concerns was not genuine. 142 The transcript of the hearing indicates that the Committee was seeking to discharge its role conscientiously by investigating Dr Hamor's provision of services in the wider context of the overall treatment of the relevant patients, as well as by giving detailed attention to Dr Hamor's provision of services to the sample cases. The transcript indicates that Dr Hamor was given many opportunities to comment on the relevance or correctness of the Committee's concerns over a two day hearing, which could not reasonably be considered to indicate the formation of any inappropriate fixed or final view. Subsequently, Dr Hamor was given an opportunity to make written submissions and to respond to the preliminary findings in the Committee's draft report.

Draft and final reports 143 The draft report comprises 142 pages including 30 pages of reasons for the Committee's preliminary findings and over 100 pages of findings about the sample cases. 144 The final report comprises 151 pages including 39 pages of reasons for the Committee's findings and over 100 pages of findings about the sample cases. 145 Dr Hamor first referred to comments that appeared in both the draft and final reports in the table concerning sample case 17 under the heading "Inadequate clinical input". Dr Hamor acknowledged the Committee's observation that Dr Hamor regarded it as unconscionable to perform tests and sell treatment equipment. The comments about which Dr Hamor complained are contained in the following extract from the draft and final reports: Given the complex comorbid conditions and Dr Hamor's failure to obtain a proper history, the content of Dr Hamor's report is cursory and very unsatisfactory. While Dr Hamor stated in his letter to Dr Siraparapu that he had explained the ramifications to the patient, he made no mention of what those ramifications were in his report or letter to the practitioner. While in his report he stated that a follow up review with a sleep physician may be warranted in cases where symptoms do not improve or the patient's compliance is poor, this was an inadequate recommendation for this patient, where it should have been more firmly indicated that she be referred to a specialist. As CPAP treatment was recommended by Dr Hamor, the report to the referring practitioner and the discussion with the patient in the subsequent consultation and the follow-up letter to the practitioner should have indicated the available options for alternative suppliers of such treatment. There is a clear conflict of interest in the same organisation, for whom Dr Hamor worked, in providing the diagnostic test and then selling the treatment device. In the hearing, in response to that concern, Dr Hamor said: "…the GP has the right to refer the patient to any diagnostic centre they wish. Whether that's a centre that solely provides home sleep studies or whether it's to a sleep laboratory or whether it's a sleep physician in the first instance it's up to the GP to decide what they do. Once the GP has made that referral the patient has some kind of a relationship with that person. Now, if that GP had referred the patient to some other centre who also performed home sleep studies and sells CPAP equipment exactly the same format would have occurred. What I think is more relevant and it's totally outside of the scope of this meeting or this jurisdiction is the fact that certain people, amongst our colleagues, not only diagnose but sell. And that is unconscionable, in my view, but the fact that a commercial organisation which organises a diagnostic test and provides the equipment is totally fair and reasonable - number one - and number two, the patient has the choice of going somewhere else to purchase their equipment. No one twists their arm." Dr Hamor then said, in relation to Healthy Sleep Solutions: "Well, what I do know is they're set up to do a service for which they receive a very small amount of remuneration in terms of doing a diagnostic test… But their major remuneration comes from selling machines… That is a business." In these comments Dr Hamor indicated that he regarded it unconscionable that some sleep physicians practitioners perform tests and also sell the treatment equipment following a positive diagnosis resulting from the test. The Committee is of the view that Dr Hamor is effectively working as an agent for Healthy Sleep Solutions in its business model of providing both a test and then promoting their CPAP equipment and services. The general body of respiratory and sleep physicians would expect the patient to be given truly objective and independent advice regarding the available treatment and equipment choices, which is not what Dr Hamor or the technicians who performed aspects of the service on his behalf did. Dr Hamor was not present at any time while the technician interacted with the patients on his behalf in relation to the MBS item 12250 service, and so Dr Hamor would not know whether or not the technician, who was the owner of the Healthy Sleep Solutions franchise, might seek to influence the patient in relation to treatment options. While Dr Hamor regarded it as unconscionable for a sleep physician to profit from the treatment provided as a consequence of a diagnostic test that practitioner had performed, the technician performs part of the service on Dr Hamor's behalf and so is putting Dr Hamor in essentially the same position as a sleep physician who Dr Hamor regards as acting unconscionably. This also relates to Dr Hamor's failure to adequately supervise the technician. 146 Dr Hamor submitted: (1) There was no basis for the Committee's finding that Dr Hamor was working as an agent for HSS. (2) There was no evidence that HSS promoted CPAP equipment to patients who had undergone a diagnostic test. (3) Dr Hamor performed a medical service which was billed in his name and, consistently with accepted medical practice, technicians and scorers performed part of that service. (4) As the Committee accepted, Dr Hamor was performing a diagnostic test. (5) The unchallenged evidence was that, in his report to the GP, Dr Hamor might make recommendations as to treatment options, such as a CPAP machine, but he did not otherwise deal with "that side of things at all". (6) Upon receipt of a report from Dr Hamor making such a recommendation, the GP did not simply provide a CPAP machine without further expert involvement. (7) There was no basis for the Committee to conclude that Dr Hamor did not give his patients "truly objective and independent advice". In particular, the fact that Dr Hamor did not advise patients that they should look to providers other than HSS to sell them CPAP machines did not provide a basis for this conclusion. (8) There was no evidence that the technicians provided the patients with any advice at all, let alone advice that was neither objective nor independent. If, following the provision of a diagnostic test to the GP, a patient visited HSS to purchase a CPAP machine, it is doubtful whether the technician would be ethically required to advise the patient of other provider options. (9) The Committee's conclusion that Dr Hamor was an agent for HSS is suggestive of a general mistrust of doctors providing home sleep studies in association with commercial operators. 147 As to submission (1), the Commonwealth did not dispute that there was no basis for the Committee's preliminary finding (and subsequent final finding) that Dr Hamor was effectively working as an agent for HSS. A central element of the legal concept of "agency" is the principal's conferral of authority on the agent (typically to affect the legal relationship between the principal and a third party). Here, there is no evidence that HSS authorised Dr Hamor to act on HSS's behalf to create or affect legal relationships between HSS and patients. A significant aspect of an agency relationship is that it is fiduciary, so that the agent owes special duties to the principal. Thus, the finding that Dr Hamor was HSS's agent tends to imply that Dr Hamor owed duties to HSS that did or might conflict with his duties to his patients. In my view, a fair-minded lay person would have understood the Committee to be making a provisional, and a final, finding that Dr Hamor owed conflicting duties to his patients and HSS because he effectively worked for HSS. 148 This finding involved an error on the part of the Committee. However, the evidence was that the relationship between Dr Hamor and HSS was a very close one and included suggestions that Dr Hamor worked for HSS. For example, in a letter dated 11 March 2016, Dr Hamor's lawyers stated relevantly: During the Review Period, Dr Hamor reported on home sleep studies which were performed under his supervision for an organisation named 'Healthy Sleep Solutions'. 149 Further, at the hearing, Dr Hamor gave the following evidence to the effect that he was paid for his services by HSS: DR NAPIER: So when you are billed - when you bill, head office does all of the billing with Medicare and the interaction, and then they pay you? DR HAMOR: A very, very small sum of money. DR NAPIER: So there is a facility fee or something that they take out of the billings. DR HAMOR: They have to pay their technicians. I presume. They have to pay their staff, I presume. They have to pay for whatever --- DR NAPIER: So they give you a percentage of whatever the billings are? DR HAMOR: They give me a moiety of the total Medicare sum. DR NAPIER: That moiety, how is that determine? DR HAMOR: They determine it. DR NAPIER: So do they determine it on the billings or do they determine it on - because you're a consultant, they pay you're a consultancy fee? DR HAMOR: No. They say, "This is what we're prepared to pay you for doing your job." DR NAPIER: The job on X-number of studies or --- DR HAMOR: It doesn't matter whether it's one or a thousand. DR NAPIER: Right. So it's more like a consultancy fee where they're paying you to be --- MR …….. : Percentage per service. DR HAMOR: Well, maybe it's a percentage per service, yes. 150 A sample letter from Dr Hamor to referring GPs stated relevantly: I work in conjunction with Healthy Sleep Solutions, a highly regarded, Australia-wide organisation to assist with patient care throughout this process… The team at Healthy Sleep Solutions is expert at explaining the diagnostic procedure to patients and helping them understand how to fit the study apparatus. Healthy Sleep Solutions can also provide professional access to treatment for sleep apnoea should this be the finding of any sleep study conducted for your patients keeping you, as the primary care physician, involved every step of the way. 151 Other matters that indicated Dr Hamor's reliance on HSS, and his provision of services within a framework that involved HSS's participation, included the following: (1) Dr Hamor said that he saw patients at Wollongong at a clinic which was a franchise of HSS. He worked there once a month. Dr Hamor said "So my practice is, I suppose, an adjunct to the clinic". (2) The Committee's unchallenged finding that Dr Hamor said, in relation to his home sleep study referral base, that he worked with HSS, which allocated territories to him by franchisees (technicians). The technicians acquired referrals by approaching GPs. They provided the GPs with a referral pad. Dr Hamor also said that the technician received referrals from GPs. (3) HSS provided the sleep test scorers. (4) The technicians were trained by HSS. The Committee's unchallenged finding that Dr Hamor said that he relied on the ability of the technicians to determine the necessity of the home sleep study. (5) Dr Hamor said that when a GP asks him to see a patient who has had a study at Wollongong, he sees the GP referral, sees the patient at Wollongong, dictates a letter, the letters are uploaded to his software in Miranda where they are typed, a copy is kept in his software, and copies go to the referring GP and to the technician who organised the clinic for him in Wollongong. (6) The item 12250 was billed by HSS after Dr Hamor completed the report, although the service was billed in Dr Hamor's name. 152 As to submission (2), the Committee did not make a preliminary or final finding that HSS promoted CPAP equipment to patients who had undergone a diagnostic test. Rather, the Committee identified a risk that the technician might seek to influence the patient in relation to treatment options, on the basis of the opportunity for the technician to do this when interacting with the patient in Dr Hamor's absence. A fair-minded lay person would appreciate that it was relevant to consider the risks that might arise from the manner in which the relevant services were provided as part of an investigation into whether the provision of the services involved inappropriate practice. 153 The Commonwealth did not dispute submissions (3) to (6). 154 As to submission (7), the relevant finding was made in connection with a particular patient, sample case 17, in respect of whom Dr Hamor's report contained several recommendations including urgent treatment with CPAP. The finding was not simply that Dr Hamor did not give "truly objective and independent advice"; it was that he did not give "truly objective and independent advice regarding the available treatment and equipment choices". There is a proper basis for the finding, being the earlier finding that Dr Hamor's report should have indicated the available options for alternative suppliers of CPAP, in the light of Dr Hamor's close relationship with HSS. 155 The Commonwealth did not dispute submission (8). It was not fair to the technicians to make an adverse finding about their conduct when they were not the subject of the review and were not given an opportunity to address it. 156 As to submission (9), I do not accept that the Committee's finding of agency suggests a general mistrust of doctors providing home sleep studies in association with commercial operators. However, and more specifically, the findings indicate the Committee's conclusion that the relationship between Dr Hamor and HSS in provision of home sleep studies was not consistent with the best interests of the patients who received the item 12250 services. 157 Dr Hamor next referred to the Committee's response, in the final report, to his submissions alleging an apprehension of bias on the basis of the Committee members' conduct during the hearing. The relevant passage of the final report is as follows: 128. It was submitted that the Committee members' expression of concerns, during the hearing, relating to the commercial operations of Healthy Sleep Solutions indicated bias against Mr Hamor. All that the Committee members did was to express concern based on the information before it and gave Dr Hamor an opportunity to give evidence in response. 129. The inference was open to the Committee that given the circumstances as described by Dr Hamor, including minimal supervision of the technicians, who were Healthy Sleep Solutions franchise owners or employees of Healthy Sleep Solutions, it was likely they would promote the sale of their own products rather than give patients a genuine choice. Dr Hamor stated that they were acting as his proxies in performing aspects of the services. His lack of adequate supervision of the technicians left open the likelihood that they would act in their own interests or the interest of their employer in giving advice to Dr Hamor's patients in the course of assisting Dr Hamor to render the service or the sale of individual CPAP devices, his part in the Healthy Sleep Solutions operations was integral to their business model, through which he benefited by being allocated work. If he had better supervised the technicians in their interaction with his patients, he might have been able to minimise such a conflict of interest, but he did not do so. This submission demonstrates that Dr Hamor continues to lack insight regarding this concern. 158 Dr Hamor submitted that this passage might indicate to a fair-minded lay person that the Committee held the view that, by simply providing services in association with HSS, Dr Hamor engaged in inappropriate practice. The passage appears in the context of the Committee's lengthy account of matters including the process by which Dr Hamor provided the relevant services, Dr Hamor's technical knowledge, the terms of item 12250, the issue of whether the sleep physician was required to confirm the necessity for a home sleep study and whether Dr Hamor was responsible for supervision of the technician and scorers in the tasks they performed in connection with rendering the item 12250 service. The context also includes the appendix to the report, which contains a detailed analysis of individual randomly selected services. In that context, and having regard to the Committee's repeated references to its finding that Dr Hamor did not adequately supervise the technicians who performed parts of the item 12250 services, it is not tenable to suggest that a fair-minded lay person might form the view that the Committee held such a simplistic opinion. 159 Nor do I accept that a fair-minded lay person might have concluded that the Committee's finding about "minimal supervision" reflected a predisposition against commercial providers of home sleep studies. Dr Hamor did not suggest that the finding was not open on the evidence. The finding was squarely addressed to the particular circumstances of the services provided by Dr Hamor. 160 The complaint about the Committee's finding that, with better supervision, Dr Hamor might have been able to minimise a conflict of interest goes nowhere. It is no answer to claim, as Dr Hamor does, that he could not have supervised the technicians in the relevant circumstances. It was a matter for Dr Hamor to ensure that, to the extent the services were provided by technicians, they were performed under Dr Hamor's supervision in accordance with accepted medical practice, as required by cl 1.2.8, so that item 12250 applied. The Committee was not required to explain how Dr Hamor could have met this requirement. 161 Dr Hamor contended that a lay person would doubt the Committee's claim that it merely expressed concerns during the hearing, and gave Dr Hamor an opportunity to respond, because the Committee did not engage with Dr Hamor's evidence or submissions on the issue. I do not accept that the Committee failed to engage with Dr Hamor's submissions. To the contrary, a fair-minded lay person would observe that the Committee dealt with the submissions by identifying their substance and rejecting them on the basis that its statements at the hearing were no more than expressions of concern which it was giving Dr Hamor an opportunity to address. 162 Dr Hamor also submitted that the Committee failed to take account of evidence that Dr Hamor did not make recommendations for treatment until after the item 12250 service was performed, in finding that there was a likelihood that technicians would give self-interested advice to patients whilst assisting Dr Hamor to perform the service. The relevant likelihood is set out at para 129 of the final report (at [157] above). A fair-minded lay person would not consider that the Committee's failure to advert to that timeline was indicative of a possible bias. The finding is consistent with Dr Hamor's reference to HSS's supply of treatments in his sample letter referred to at [150] above.

Weight attributed to evidence of the three physicians 163 Dr Hamor's contention was that the Committee failed to give any weight to the evidence of the three physicians. That contention is not supported by the Committee's reasons as set out in the final report. The Committee made the following relevant findings: (1) The three physicians have substantial experience as respiratory and sleep physicians as well as in providing home sleep studies. (2) The Committee did not disregard the views expressed in the three physicians' reports but noted that they did not hear the evidence given at the hearing or the initial concerns expressed throughout the hearing by the Committee, and were not called by Dr Hamor to give oral evidence. (3) Consequently, the three physicians' opinions were of little assistance. (4) The Committee examined and took into account the reports of each of the three physicians. (5) The reports were general and provided limited but qualified support for some aspects of Dr Hamor's mode of practice. (6) The Committee did not interpret the views expressed by the three physicians in their reports as being in conflict, in any material degree, with the Committee's findings in relation to whether the specific conduct identified in each of the sample cases would be unacceptable to the general body of respiratory and sleep physicians. However, as they were not called to give oral evidence, the extent to which their views might differ from the Committee was not tested. 164 These findings indicate that the Committee attributed some weight to the physicians' reports, as evidence in support of some aspects of Dr Hamor's mode of practice, and as evidence that was not materially in conflict with the Committee's evaluation of the sample cases. 165 Dr Hamor noted that all three physicians expressed the view that item 12250 did not require personal attendance on a patient and that the use of a questionnaire was an appropriate way of confirming the necessity for the test. The Committee did not make a finding that personal attendance was required. Dr Hamor did not suggest that the Committee erred in failing to find that the use of a questionnaire was an appropriate way of confirming the necessity for the test. Mr Knowles noted that Dr Hamor's submission, that his reliance upon questionnaires to confirm the necessity for the test was widely accepted in the profession and was therefore not inappropriate practice, even if it was contrary to the requirements of item 12250, was not made to the Committee.

Misconstruction of item 12250 166 As explained below, I do not consider that the Committee misconstrued item 12250. 167 Rather, the Committee made a factual finding that the general body of respiratory and sleep physicians would expect that the sleep physician would have a role in supervising the technicians and scorers in order to ensure an appropriate quality of service provision. 168 Dr Hamor argued that this finding involved a change of position on the part of the Committee having regard to the Committee's reference to the Medical Benefits Schedule Book, quoted at [10] above. I do not accept Dr Hamor's contentions that the Committee "acknowledged the correctness" of the position stated in the Medical Benefits Schedule Book, or that the Committee quoted from the book with apparent approval. But in any event, there was no change of position. The book states a general rule: the Committee concluded that the general body of respiratory and sleep physicians would expect something different for item 12250.

Conclusion 169 The facts above fall far short of the facts alleged, and far short of demonstrating that a fair-minded lay person might reasonably apprehend, in the totality of the circumstances, that the Committee might have decided the review otherwise than on an impartial evaluation of the merits. In particular, while the findings of the final report (and the preliminary findings in the draft report) reveal error as to the precise relationship between HSS and Dr Hamor, that error does not provide a reasonable basis for a fair-minded lay person to apprehend bias on the Committee's part. A fair-minded lay person would recognise that the errors were made in the context of the Committee's consideration of: (1) whether Dr Hamor failed to supervise adequately the technicians provided by HSS who were involved in the provision of the home sleep studies; and (2) whether the arrangements between Dr Hamor and HSS created a conflict of duty and interest that was not adequately mitigated to the potential detriment of Dr Hamor's patients. 170 In that context, a fair-minded lay person would appreciate that the Committee endeavoured to address the significance of the relationship between HSS and Dr Hamor for the patients who received the relevant services, which was a relevant matter to consider and did not approach the question with any adverse prejudgment. The finding of agency did not indicate an unfavourable opinion concerning Dr Hamor and HSS, but simply a conclusion as to the nature of their relationship. The Committee specifically adverted to the possibility of minimising a conflict of interest. By doing so, they showed that they did not hold a fixed view that a conflict of interest was necessarily unacceptable.

Misconstruction of statutory task 171 Dr Hamor contended that the Committee misconstrued its statutory task by considering that item 12250 required the qualified sleep medicine practitioner to: (1) supervise the investigation by the technicians and scorers, other than by establishing quality assurance procedures for data acquisition, and (2) take a history, or supervise the taking of a history. 172 By doing so, Dr Hamor argued, the Committee misdirected itself in determining whether his conduct, in connection with rendering or initiating item 12250 services, was such that a committee could reasonably conclude that it would be unacceptable to the general body of consultant physicians in Dr Hamor's speciality.

Supervision requirement 173 At para 117 of the final report, the Committee addressed submissions made by Dr Hamor concerning whether Dr Hamor was responsible for supervision of technicians and scorers who performed elements of the services, as follows: The Committee does not agree that the legislation did not require Dr Hamor to have a role in supervising the technicians and scorers or that the functions they performed were not an integral part of the provision of the MBS item 12250 service performed on behalf of Dr Hamor. His responsibility in respect of the technicians and scorers was not displaced by fulfilling a duty to establish quality assurance procedures for data acquisition. This is particularly so in relation to the technicians who did not necessarily have any health qualifications or relevant training, yet were not only assigned the role of obtaining a medical history from the patients, but also confirming the necessity for the investigation, and instructing the patient on the attachment and use of the recording equipment, and dealing with any other matters, whether clinical or technical, concerning the investigation that were, or should have been, dealt with prior to the investigation. 174 Clause 1.2.8(2) is set out at [9] above. In this case, the Committee was required to consider whether the medical services to which item 12250 was said to apply were given by a person or persons who in accordance with accepted medical practice acted under the supervision of a medical practitioner, to the extent that they were not provided by Dr Hamor himself. 175 Ultimately, there was no dispute that the relevant medical services were given, in part, by the technicians and scorers engaged by HSS. There was no suggestion that any medical practitioner other than Dr Hamor supervised the technicians or the scorers to the extent that they were involved in giving the relevant medical services. 176 Dr Hamor contended that his role in supervising the technicians and scorers was limited, by the language of item 12250, to establishing quality assurance procedures for data acquisition of the kind identified in item 12250 clause (e)(i). Clause (e)(i) imposed a separate requirement on the practitioner to establish the specified quality assurance procedures for data acquisition, where the efficacy of the investigation evidently depends upon the acquisition of meaningful data. That requirement is not expressed as a qualification to, or replacement for, the supervision requirement expressed in cl 1.2.8. Dr Hamor did not argue that the role of the technicians and scorers in the provision of the services was confined to data acquisition within the meaning of item 12250. 177 Accordingly, I do not accept that para 117 of the final report discloses legal error on the part of the Committee. 178 There is a separate factual question whether, as a matter of accepted medical practice, the establishment by Dr Hamor in advance of quality assurance procedures for data acquisition is sufficient to discharge the requirement of supervision. Putting aside the histories taken by the technicians (which Dr Hamor contended did not form part of the item 12250 service), the technicians supplied the patients with the equipment that the patients would use at home to do the study. Dr Lucy submitted that, in the case of the technicians, there was really nothing to supervise.

History requirement 179 The Committee made the following findings at paras 109 to 111 of the final report: (1) The general body of respiratory and sleep physicians would expect a relevant detailed history to be taken before the test is conducted and the item requires the qualified sleep medicine practitioner to confirm the necessity for the investigation. (2) While the item does not expressly require a detailed history to be taken, the Committee is of the view that the general body of respiratory and sleep physicians would expect it to be performed, if not by the physician, then by the technician on the physician's behalf so that the physician has an adequate basis for concluding that the test was necessary for that patient. (3) The role of the qualified sleep medicine practitioner included using their specialist expertise in confirming that the investigation was actually necessary for that patient. An essential element in making that assessment would be taking, or at least having available, a reliable and relevant detailed history. 180 Dr Hamor acknowledged that he was required to decide personally whether the service of an unattended sleep study was necessary, before it took place, and he could not delegate that task to a technician under item 12250. 181 Dr Hamor submitted that the Committee's criticisms of him for failing to supervise adequately the technicians were principally made on the basis that Dr Hamor did not properly supervise the taking of a history. In support of this submission, he referred to several of the findings made by the Committee concerning the sample cases. 182 Dr Hamor argued that the Committee's finding that Dr Hamor was required by item 12250 to supervise the taking of a patient history by a technician is "curious" in the absence of any reference to histories or technicians in the item. 183 Dr Hamor also seemed to suggest that the technicians' histories did not form a part of the medical services given in purported compliance with item 12250. Dr Lucy also noted that, where the item required a clinical opinion of a GP, the GP will have taken a history and, she asserted, it would be normal for the GP to provide that history with the referral. 184 The Committee's findings indicate that it considered that the qualified sleep medicine practitioner was required to take, or have available, a history in order to confirm the necessity for the provision of a home sleep study under item 12250 investigation. I am not persuaded that the Committee misconstrued item 12250 in reaching that conclusion. It is implicit in item 12250 that the qualified sleep medicine practitioner is required to confirm the necessity for the investigation by reference to relevant information. It was open to the Committee to conclude, as a matter of fact, that this aspect of item 12250 required Dr Hamor to take a history or to supervise a technician who would take such a history, in accordance with accepted medical practice. 185 Accordingly, Dr Hamor's case based on the Committee's alleged misconstruction of its statutory task also fails.

Conclusion 186 Dr Hamor's application will be dismissed. Costs should follow the event. I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.